January 28, 2021
AAP Files Amicus Brief in Canada Hockey, LLC v. Texas A&M University Athletic Department
The Association of American Publishers (AAP) has filed an amicus brief in support of sports writer Michael Bynum in the pending sovereign immunity case, Canada Hockey et. al v. Texas A&M Athletic Department, et al.
The case, on appeal in the 5th Circuit, turns on the critical question of whether a copyright owner may recover monetary damages from a state actor for actual egregious infringements, where injunctive relief would do little if anything to remedy the economic harm suffered.
The amicus brief notes that “The availability of a damages remedy for infringement by state actors is particularly important to the AAP and its members because state actors play a major role in the publishing ecosystem and the availability of damages is critical to maintaining the essential balance struck by the copyright laws.”
The case involves the brazen infringement of Bynum’s sports article by an employee of the Texas A & M Athletic Department, who removed the copyright information and distributed it to hundreds of thousands of recipients as part of a fundraising exercise after directing his assistant to retype it. The article, which was to be the centerpiece of Bynum’s book, was downloaded, retweeted, and further distributed hundreds of thousands of times, draining it of economic value.
As AAP’s brief states, “The lack of a damages remedy in this important context is exacerbated in modern times by the swiftness with which bad actors can copy, distribute and devalue copyrighted works, leaving publishers without any meaningful recourse even in the most egregious or intentional circumstances. This fact stands in direct contradiction to the constitutional purpose of copyright law, and jeopardizes the vital incentives to create, distribute and otherwise license proprietary content.”
In the pending case, Bynum offers two constitutional arguments: 1) The university’s infringement is a deprivation of property without due process of law; and 2) The infringement was an uncompensated taking. Defendant Texas A & M has argued that it is entitled to complete sovereign immunity on all claims, but, as outlined in AAP’s brief, “Unchecked state infringement would, as numerous courts have recognized, diminish the incentive to invest in and publish both new and existing works. If this Court were to affirm the District Court and allow state actors to violate copyrights without fear of financial liability, it would greatly reduce the viability of the Copyright Act for publishers, and it would undermine its essential purpose: to “promote the progress of science and useful arts.” U.S. Const. Art. I, § 8, cl. 8.