This morning the Texas Supreme Court heard oral arguments in Jim Olive Photography v. University of Houston System. ASMP and NPPA drafted an amicus brief in this matter. You can read that here.
Below, you can watch the oral argument, and see a live run-down from my initial and subsequent viewing. This is a rough, immediate summary, and more will be forthcoming on this case and deeper analysis in the days to come.
Jim Olive’s attorney Owen McGovern has 15 minutes for his argument and to answer the Justice’s questions, and he has reserved 5 minutes for a rebuttal argument.
Atty. McGovern begins by stating that the Court of Appeals erred by not acknowledging the rights that were infringed by the University of Houston. There are two property interests that are most important here: the right of exclusivity, and the right of transferability.
The idea and word “exclusive” in the copyright act matters, says Atty. McGovern. Without exclusivity, there is not a taking, but there is a property interest here because of the exclusivity. Atty. McGovern asks the court to include the word “exclusive” each time the Court hears the word “right”.
Justice Lehrmann notes that were the infringer a private actor, Olive could sue them, correct? Atty. McGovern says yes, but the right to sue is a procedural right, not the most important right.
Justice Guzman asks if Olive can sue the state for an injunction? And if so, how is that a taking?
Justice Boyd presents a hypothetical of owning a piece of land and the government drives across a corner of that. Is that a taking? This hypo is adjusted and discussed at some length.
Justice Bland discusses the state property right (as opposed to the federal property right of copyright). This is important to give the state Supreme Court the ability to hear and rule on this case. This is a narrow and technical question and answer based on the 11th Amendment (according to Justice Bland) and the Texas Constitution (referenced by Atty. McGovern).
Justice Black asks: “Can Congress just abolish the copyright act?” or change the copyright law so that this photograph would not be protected? Atty. McGovern says no, those rights can’t be taken retroactively.
Atty. Craft (for the State of Texas). Two main arguments: there was no “physical appropriation” and 2) only “authorized” governmental acts can be a taking; since there was no authorization, this was at most a “tort” and not a taking.
Atty. Craft notes that the use here did not deprive Olive of the “entire bundle of rights” that come along with copyright.
Justice Busby raises a question related to trade secrets and why that would be different from this situation. A great question that pushes back on the idea that if the University did not take ALL of Olive’s rights, then they can’t be held to have committed a “taking.” Atty. Craft disagrees.
Justice Busby refers to the Texas takings clause, and how it differs from the federal takings clause. Atty. Craft notes that the language is different in the clauses, but the result is the same. Justice Busby posits that they Olive may be able to replead for a different kind of taking. Atty. Craft disagrees.
Justice Boyd refers again to his government-driving-on-corner-of-his-land hypothetical. Atty. Craft notes that if the state said they would build a “port-a-potty” on his land, then there would be a wholesale deprivation of the rights in that parcel of land. Justice Busby pushes back on Atty. Craft’s argument and there is a digression into property law easements. Justice Boyd brings it back to the idea of a “complete deprivation” of the person’s rights.
Justice Lehrmann asks “if the photo is now in the public domain” doesn’t that mean that Olive has lost his rights? What about downstream infringers? Atty. Craft falls back on his position that this is not a “per se taking.”
Atty. Craft enumerates the rights that Olive still had after the University of Houston infringed. Justice Lehrmann asks “what would the market be after anyone can take it and use it?” This is a great question that gets to the heart of the matter. Atty. Craft reiterates his position that there cannot be a per se taking which requires a physical taking of the entire bundle of rights.
Justice Busby asks for evidence that the idea of a per se taking is the right framework for this case. Atty. Craft says that there cannot be a per se taking of an intangible property right (like a copyright).
Justice Busby references amici in general! That includes ASMP, NPPA, and other groups who wrote to the Court about how this case would affect law and jurisprudence in this area.
Chief Justice Hecht asks for a “limiting principle” and notes what if the University just took textbooks and gave them for free to all students? Atty. Craft says that the Chief Justice’s hypothetical is STILL not a per se taking. [A technical argument, but Chief Justice Hecht gets to the heart of the matter in ASMP’s view: this is just not right.]
Atty. Craft makes his final argument that a “taking” must be authorized, and an unauthorized act cannot be considered a taking. It can, at most, be a tort. Justice Busby pushes back on this argument, and notes that the University controls its website and that taking an image, removing the copyright information from it, and posting it… isn’t that a knowing act? Atty. Craft again does not fight the infringement but rather notes a “direct limitation” from the Texas legislature.
Atty. McGovern has five minutes for final arguments and rebuttal.
Atty. McGovern: “They have the takings rule exactly backward.” This is a rebuttal to Atty. Craft’s technical arguments on per se takings.
Atty. McGovern cites cases that show that it doesn’t have to be a “physical taking” but can be “akin to a physical taking.” The question is: was there a direct appropriation of property? Atty. McGovern cites the Texas Constitution to say “Yes”.
The heart of a copyright is the exclusive right of use. The exclusivity matters.
Chief Justice Hecht asks for a reply to the “no authority” argument. Atty. McGovern cites the Cook case, and pushes back on the idea of authorization being a prerequisite.
Justice Black asks if it matters if the way this was infringed is how a private actor would infringe.
Look for more analysis and feedback in the coming days and weeks, and when the Court rules on this matter, you will be able to read about it here first.