right the first case we'll hear is alan bersin scooper and i guess we'll start mr park morning your honor may please the court my name is ryan park from the north carolina department of justice and i represent the state of north carolina and the other state defendants in this case congress enacted the copyright remedy clarification using its general power to regulate copyrights under article one of the constitution the supreme court later clarified that congress may not authorize lawsuits against states using article one and since that time every court that is considered clarification has rule claims against the individual defendants for this reason the state respectfully asks that the court reversed the judgment below now at the very threshold section five cannot apply here because congress did not specifically invoke it when and so i refer the court to page page seven of the house report page eight of the senate report and on those pages congress says we are in acting the statute under article one that mentions the fourteenth amendment but only to contrast with this article fourteenth amendment issue so i don't think that if it's actually possible to avoid that section five issue i think it's possible avoid really i think big question is a little so i think that the way to avoid that question your honor is to find that there's been no constitutional violation alleged here or there's been no you know well pled combining judge things concerning this is to avoid holding the eleventh amendment applies to the entity claims and then qualified immunity would apply to the individuals yes your honor and so i'm happy to address qualified immunity i think it's pending and i think you know it's necessary to address that on appeal you know no violation of law here that that affirmative defense has been is on the face of the complaint but i'm not quite sure you have to get to export that young it would not eliminate the export of younger i think i thought export address expert a young well so it's interesting to look at it and i don't tell you this is do we have the tools to address it i mean there is the suggestion that the violations from philips course of this case from this court that we cite in our brief is that any material that interval to the complaint and is expressly incorporated in the complaint can be considered at this stage of the proceedings and in that case it was a newspaper article that was referenced and relied on and they actually said for the web address it directly correct and said this is where the violations ongoing violations or occurring are the question i'm asking is can w then when they invite us to that website can we legitimately look and consider what we say yes your honor and that's exactly what this court did in phillips there was a newspaper article with you know the headline included in the complaint and was in trouble to the complaint  those specific alleged infringements have been removed from from the from the website isn't there an ongoing concern of future violation in that they read in the complaint that there was a settlement agreement that i'm agreeing that was not complied with it would require that the district court take a look at the whole record so i don't believe so and i'd like to make two points on that so first there is sovereign immunity and move which i think this alludes to are distinct said because we consider sovereign immunity to be dispositive of the appeal we're not going to consider other issues and that was because i expect a young requires an actively ongoing violation of law that is happening right now and and and horizon from the stream court says that that violation of law must be alleged in the complaint and so you know new allegations that are that are alleged you know in in a brief don't count and the reason why this is ok or think it would be i think it's helpful for the court i'd refer the court to page eighty seven of our joint appendix which includes paragraph sixteen of the contract and that contract  the face of the complaint it doesn't connect to the actual uses that were of the works that were at issue here so the two points on that so the there's a vague allegation that there was some sort of financial relationship about it there is a nonprofit museum that the state has established and generates a lot of interest from tourists visiting visiting the coast and these were just educational videos even for free where a few seconds of allen's footage were  violate federal copyright law that was fair use and if when i take a picture of my family at a museum and there's you know cooperative works in the background that's fair use and it's not i don't violate federal copyright law coasting that on social media and say educational said noncommercial i'm sorry what was the reservations there not all that one hundred the public documents they reserve and they had one for some kind of use what was that they it was noncommercial digital media that's that's could use and display each other's noncommercial digital media and so commercial media was subject to special arrangements that are not all right you've got some rebuttal well if you're on it we'll hear from mr gast i think next or it's gas you're on or any gas from life and walk ins on behalf of me ralph on the former register of copyrights i want begin by thanking the court and the parties for their consent to mr oman having some time at this argument  only the role of me so you could have been repealed and it's a little troubling to have you arguing the merits of a proposition in this case they peeled the five minutes i suppose we'll hear from you because we've granted it  clarifying what mr oman's interest is yours so he in fact has no particular view in which r t should prevail ultimately here he certainly has no view on some of the questions that were the subject of your colloquy with mr park about whether the constitutionality of the c r c a is an issue that needs be addressed at all mr oman sole interest here is in ensuring that the history of that act is accurately reflected to the extent that the court does reach the constitution ality of that statute beyond that he doesn't particularly care one way or the other who ultimately prevails in a lawsuit so with an eye toward that perspective we begin briefly by addressing one of the substantive points that mr parker made concerning the constitutionality of that statute and then i thought it might be helpful to just spend a moment talking about what actually happened in history so mr parker began by suggesting that  moment i just want the court to be aware that that position has been expressly rejected in the context of the c r c a by the eleventh circuit the case is national association of boards versus board of regents that's six thirty three f third well ninety seven at thirteen fifteen no thirty i would add by the way it's far less clear than mr park has suggested that congress in fact didn't rely on section five i  would refer the court to page six of the senate report that he alluded to in which congress noted that it's patrick versus bits or was at that time the leading case concerning the constitutionality of applications under section five and then went on in the next sentence to say congress or a lot on the fitzpatrick decision in the legislative history of the seventy six act to hold states liable for damage and copyright infringement cases so if the congress was talking about that passed it's a bit hard to see why they wouldn't be interested in invoking the same source of authority in the future briefly though going back to the history of want to make it clear that the cases to have addressed the constitutionality of the statute date have painted a slightly misleading picture of the gravity of the problem that was confronting congress at the time from one thousand nine hundred until the supreme court's decision in a task of arrow in one thousand nine hundred five there were exactly four cases that wrestled with the question whether a state could be liable for copyright damages not withstand the eleventh amendment following the decision in a task of barrow there was an outbreak of five cases between one nine hundred eighty five and the date in one thousand nine hundred eight when mr oman filed the report that congress asked him to submit he in that report which took the copyright office of nearly a full year to compile mr ohman compiled  solicited comments from forty four stakeholders in copyright related industries including the testimony of a variety of rights holders who specifically identified instances in which states had in the past section well to be sure there articulation of the constitutional source of authority they were invoking that have been clearer i would note that in congress's defense the case law didn't become quite so clear until later  itself has noted in brown versus north carolina division of motor vehicles that's one sixty six f thirty six ninety eight at seven o three that congress need not anywhere quote recites the word section five or fourteenth amendment in order to avail itself of section five how we address might be better as a starting point and with respect to qualified immunity in particular the facts and as the state represents them are not entirely congruity with the complaint because there are some assumptions that are made by the state that simply aren't in evidence as yet number one the complaint is not limited to those six exit in french if you look at a white south or it sample you're talking about an expert a youngish you know well i'm talking about i'm not talking about yes i'm talking about ment's are pretty strict on there has to be an ongoing violation of federal law so you allege in the complaint what you believe to be an ongoing violation of federal law listing six sites and saying there are others and so you look at the six sites and there's nothing there and so now the question is i have you across a bridge alleged an ongoing violation of federal law in that circumstance because the others is just a conclusory statement which is not supported by the six sites now maybe i'm wrong about the six sites but we've checked it twice when we prepared for this case a while ago and then we checked again this morning and those sites don't have anything showing is that you agree with that i would agree that at those particular six site the infringements are down on the other thing that was in the same warrants was from us another question i mean you can argue there but there are a few seconds apparently of that may or may not be allowed by the contract also could fall under fair use we're not talking about the display of a whole whole film these are sort of advertising teasers talk about the  seconds for example when you take as a state admittedly it's multiple seconds from something that's only thirty eight seconds on it is very likely that the evidence will show that they have taken the art if not the majority of what those that you're doing filming underwater you don't have very long clips of those things that you can by the time you've edited them down taken out the dust the sand the things you can't see and come up with with a piece of work that is worth protect so they've taken multiple seconds out of an extremely short video they have posted them they originally posted them at six sites about a year after the complaint was filed they finally took down most of them they finally got down ultimately by locations on the on the internet and that is in the complaint that they are posting them not only at those sites but on other local as rights and we go and look them your honor there is one in the there are there was one in the morning is the in our between the founding of our reply brief and like that we can look right now on the web to find what you call a letter in french yes your honor give us just a minute i can have my colleagues bring up that precise site but what this shows is that this is an ongoing unlike the case that was discussed earlier with political campaigns where you had one instance one isolated incidents where a amendment and if you read all the main justice kennedy lays out how serious that these are treated as operands and they are entitled not to be sued if they don't want to be used in federal court and it or alternatively your honor in the cases are pretty clear sighted and are required to brief they there is either an ongoing violation or they are is a clear pattern that shows that this is going to continually  therefore requires intervention at this point it is not it is not purely you have to have it today what you've got to demonstrate is it's happening so often that it is clearly going to recur this is not me it requires ex parte a young intervention and that's the situation we would have here even if today they managed to get everything off the internet because we have got the  existence of the public records the contract does not however if the government the right to use mr allen's works in a way that is different from what the attorney general's opinion told them make it which is you can't infringe copyrights and that's an addendum day to our initial brief there's an opinion from the attorney general to the department of cultural resources it says public records act is not trumped by copyright so the only use that is permitted under the contract is the one that is set out and paragraph twenty one which is for research purposes now the there is a reference as mister hart mentioned to noncommercial video that was not saying any noncommercial video uses that it was saying for research purposes only you can use it stick it up on youtube is not a research or i'm so i it's just not permitted under the contract that may be an issue of fact that ultimately the court has to decide but i don't think that a reasonable person would look at what they've done advertising a state museum hosting stuff to further advertise other activities and say this is a promote i am segregating that they can't use this as an advertisement for a museum that that you know i review is not research it may be educational but educational use is not permitted research is what was permitted by usually committed them for use educational use in limited circumstances may be permitted by fair use but as you know even an educational institution can't make multiple copies of something and start handing them out willing nellie to the students that was handled in case where professor publishing was specifically outlawed by the supreme court so i don't think i don't think that it is or can reasonably be believed to be given that contract a fair use here and i don't think to that that a reasonable person in the position of these officials which means they knew there had been a settlement agreement that settled allegations of copyright infringement they knew that this were along to mr allen there was no question about it in no way ambiguity about it they knew he owned the copyright they knew that he's been he had he had that ordinarily the copyright law prevents copying they knew that the public records did not immunize them because the attorney general had told them that they knew although it's not in the they they knew at least that they had would rely on a reasonable official would not say the attorney general's wrong i'm going to pay no attention to him i'm going to go out and and do my own research which is going to come up with a result entirely different from what they told us in a question that we specifically posed for them so that's where that's where and and i think it's unlikely that the attorney general was wrong on that point because copyright preemption has always been held to forbid state action of this sort and if you look at section two zero one of the copyright act which dates back to the one nine hundred seventy six the right itself the product of ten years of negotiation between the states and private individuals sanction to i won any of the copyright act specifically says that no government can take copyright from any individual involuntary transfers are prohibited and that was a or even before the copyright remedy clarification and added section strictness of it you have to have defendants the people who would actually orsen as it does no good tell some official in the department of records or the art of a museum or something they have to enforce something when they printer well my recollection and we can amend the complaint if we have to problem with all the we don't think so your honor because among other things as issues are so inexplicably intertwined i think both parties have believed and do believe that there is is jurisdiction here with respect to those uttal yeah i don't know which i guess it's on your cross repeal yes everybody ok we'll hear now from mr park obvious that the public records law cannot trump federal copyright law and so any copyrighted material cannot be released if doing so would violate federal law and i think what's critical there is that the federal copyright law allows what consistent with what a reasonable official looking at this agreement would delete that they had permission that apartment had bargained for permission to use these works and so i don't think that at least on the face of the contract it's it's right to say that their use of the work the works was strictly limited to you know historical research that the section says media and access passes and it sets out a process by which all the parties to the agreement could give media access could could you could use the works and post them on their websites and with certain conditions you know it said that there had to be time stamp had to be not all as mr jones company wanted to watermark of his company on the images  and it had to be on certain websites now mr allen's business partner has sued the state for breach of contract and that lawsuit is pending in state court and saying that state breached these agreements but in that lawsuit he never claims  exception to sovereign immunity it's an exception to state it because it's just simply unfair to force a plaintiff to have to violate a statute that he believes and constitutional suffer sanctions and then challenge that statute in that way and so when what expertly young says is when state officials threaten and are about to commence proceedings in force against the plaintiffs an unconstitutional statute then these these standing bars and these sovereign union bars don't apply but there is no state official who is threatening to enforce anything it's mr allen if if a state official if the department or the attorney general it authorizes the release of these public records at that point there can be a challenge to that authorization and that's not what applied that applies here and and i guess that would apply if asked the scope of the five year licens in the contract we continue to have these have these uses and i would just say standing before today  the department of natural cultural resources in conjunction with the attorney general's office has taken great lengths to identify and remove any of mr allen's works from its own servers there are we have stated below i state here they're on third party websites the image that's in the reply brief was added are on a third party website we went to them and asked them to take it down and they do so we don't have control of that website but you know these new infringements that are alleged in the briefing really says and they claim that that constitutes a waiver of our sovereign immunity you know it says breach of the agreement and so we think it's limited to a breach of contract claims but you know i think that is a based dismissal from the court's decision we think it's cool it's intertwined enough with the rest of the community issues i agree that that is a closer call because it's entirely different claim entirely from basis for for if if every legislature could be sued for an unconstitutional statute it's in the me i would have a lot of suits against legislators i agree and the same is true of the executive branch officials who are involved in  and port authority on point for that and in particular a task dare i said that you look at they surrounding circumstances and from the surrounding circumstances you interpret the way or court authority when i now i don't want to call your time we will look i know it and i apologize for not having it all immediately there it's it's that outpost i'm a complaint and on and the in the brief itself and it is in wording that in isolation has essentially been held not to be sufficient however subsequent authority from the supreme court after the cases that language is insufficient included court authority and what port authority help was that you look not only at the precise provision that is set out but you look at the rest of the store rounding provisions of the contract or in the case of alrighty it was a venue that used to interpret whether a waiver was sufficient here we think that the reference to the copyright in the context of what mr allen was was signing in this agreement it dealt only with his copyright and in that context then the waiver has to mean that you're allowed to sue in federal court because there is no other way stosur even mention them in it doesn't even relate immunity there's no discussion in the contract they just talk about liability in the scope of their agreement one way or the other there's a waiver immunity a constitutional soften immunity is a pretty serious thing in the supreme court i mean we're not just talking about a case they have made this clear in case after case after case and they have rejected waivers of all kinds where people have tried to infer  implied find it has to be explicit and it's a it's a right of the state and it's not a right of any official of the state to do well your honor i would agree with you that they have said they have not said that it has to use the word immunity when it says thank you will come down in great council and then proceed on to the next case