Post written by: Brandon Butler, SPN’s Law & Policy Advisor

Last week, the Software Preservation Network joined an amicus brief filed with the Supreme Court. In this blog post, I’ll say a little bit about the case, Allen v. Cooper, and, since this is the first time SPN has joined an amicus brief, I will also explain why it’s important for organizations like ours to engage with the courts when they are considering issues that matter to us.

In a way, Allen v. Cooper is a case about piracy, literally. Specifically it’s about the sunken ship “Queen Anne’s Revenge,” once the flagship in the fleet of the infamous pirate Blackbeard. Two centuries ago, the ship ran aground off the coast of modern-day North Carolina, and three decades ago it was discovered there. Under North Carolina law, the ship belongs to the state, and the state government has entered into a variety of complex arrangements with salvage companies and others to document and exploit the wreckage.

The plaintiff in the case is a filmmaker who shot footage of the ship underwater in collaboration with the state of North Carolina. As so often happens in fact patterns leading up to a lawsuit, the parties had a falling out. North Carolina claimed its arrangement reserved the right to reuse the footage on state non-profit websites (and it later passed a law rendering documentary footage of shipwrecks “public documents” subject to state open records laws), while the filmmaker claims that such uses require additional payment or permission and the law is an unfair appropriation of his work. The filmmaker brought suit seeking money damages, alleging copyright infringement by the state.

At this stage, the court isn’t trying to get to the bottom of the various agreements between North Carolina and the filmmaker, nor is it even trying to determine the ultimate question of whether copyright was infringed. Instead, it’s focused on whether the filmmaker can bring a suit at all. North Carolina has asked the court to dismiss the claims, raising the doctrine of “state sovereign immunity,” grounded in the 11th Amendment to the Constitution.

For years courts have said that individuals cannot bring lawsuits against states or state institutions for copyright infringement and seek money damages. Instead, they can only seek a court order directed to state officials, typically requiring them to stop infringing. (North Carolina claims even this remedy isn’t available, but we aren’t focused on that issue here.) Sovereign immunity doesn’t amount to a license for states to infringe—states can still be ordered to cease and desist, and in cases like this one that should be enough to force them to negotiate with the copyright holder for a license. It does, however, substantially lower the stakes for states and state institutions navigating the murky waters of copyright law.

And that’s where SPN comes in. Fully half our members are state institutions (mostly university libraries), and it’s important for those institutions to be able to depend on state sovereign immunity as part of their risk management strategy when working with in-copyright materials, including software. SPN members who are not state institutions benefit indirectly from their colleagues’ ability to conduct important preservation activities without fear of damages. If the Supreme Court rules against North Carolina, state institutions will have to weigh the likelihood that their preservation activities are lawful against the sky-high damages that can attach if a court disagrees. Even though we have very strong reasons for believing that software preservation activities are protected by fair use, and the need for large scale preservation efforts is real and urgent, state institutions will surely be discouraged if additional copyright penalties are added to the risk side of the equation.

So we joined the amicus brief filed by the Library Copyright Alliance (ARL, ALA, ACRL) and Society of American Archivists, prepared by Jonathan Band. Amicus (or “friend of the court”) briefs are a way for people who are not parties to a lawsuit to provide the court with legal or factual information that might help the court reach the right decision. A good amicus brief helps to ensure that the reasoning and the outcome in cases that involve specific parties take into account the possible impact on groups who aren’t directly involved. So, while attorneys for North Carolina and for the filmmaker have a duty to get the best outcome for their clients, amicus parties can bring in additional perspectives and concerns.

Some of the most effective amicus briefs focus on bringing important facts and stories to the court’s attention, rather than trying to pile on additional legal arguments. The parties will typically surface and address most if not all the relevant legal issues (and occasionally, in very difficult technical cases, scholars or expert practitioners will file amicus briefs focused on technical legal questions). The benefit courts derive from a good amicus brief is learning more about the way different potential outcomes could affect relevant groups, and how those groups have relied upon, benefited from, or been harmed by past interpretations of the law.

You might think this is an oddly consequentialist or quasi-legislative way for courts to operate, but in reality courts often look to policy and consequences to test whether a particular legal outcome is plausible or desirable. Especially at the Supreme Court level, the cases are by definition complex and contested; reasonable people can make arguments on behalf of multiple interpretations of the law. In that situation, courts can reasonably consider which of several plausible interpretations has the best overall consequences. Often, amicus briefs warn the Court that a particular decision will do grave harm, which is both a policy outcome they should want to avoid and evidence that such an outcome cannot have been intended by the legislature.

In our brief, we argue that if the Court sweeps away the long history of state sovereign immunity in copyright cases, it will harm state institutions’ digital preservation efforts. The brief surveys the long history of disaster and destruction wreaking havoc on cultural memory, explaining that rare and unique materials are always at risk of destruction. Then it surveys some of the digital preservation projects that libraries and archives have embarked upon, explaining how these efforts use digital copying and distributed, redundant storage to prevent the kind of catastrophic loss that we’ve seen in past disasters. These efforts typically rely on fair use, which is a powerful and crucial user’s right, but is also a hotly-contested one. While we believe the law strongly favors our uses, the possibility (however unlikely) that a court may disagree with our interpretation can have a chilling effect, especially if the consequences of losing in court are grave. If the court preserves state sovereign immunity, it will be ensuring that state institutions can continue to act with an additional measure of security when they engage in digital preservation.

The Court will hear oral arguments in the case on November 5. Jonathan Band will join me for our monthly SPN Members’ Law and Policy Chat that afternoon at 3pm, so join us to hear how the justices reacted in court, and to talk more about how Jonathan crafted our brief.

    Categories: SPN News