No. 18-877
IN THE

Supreme Court of the
United States
FREDERICK L. ALLEN and
NAUTILUS PRODUCTIONS, LLC,
v.

Petitioners,

ROY A. COOPER, III,
as Governor of North Carolina, et al.,
Respondents.
On Petition for Writ of Certiorari to
the United States Court of Appeals
for the Fourth Circuit

PETITIONERS’ REPLY BRIEF
TODD ANTEN
LISA M. GEARY
JOANNA E. MENILLO
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
51 Madison Avenue
New York, NY 10010
SUSAN FREYA OLIVE
DAVID L. MCKENZIE
OLIVE & OLIVE, P.A.
500 Memorial Street
Durham, NC 27701

DEREK L. SHAFFER
Counsel of Record
CHRISTOPHER LANDAU, P.C.
KATHLEEN LANIGAN
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
1300 I Street N.W.
Washington, DC 20005
(202) 538-8000
derekshaffer@
quinnemanuel.com

G. JONA POE, JR.
POE LAW FIRM, PLLC
P.O. Box 15455
Durham, NC 27704
Counsel for Petitioners
May 2, 2019

 TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES........................................ii
INTRODUCTION........................................................1
ARGUMENT................................................................3
I.

THE STATE DOES NOT DENY THAT
INVALIDATION
OF
A
FEDERAL
STATUTE CUSTOMARILY TRIGGERS
THIS COURT’S REVIEW ...................................3

II.

THE STATE DOES NOT DISPUTE THAT
THIS CASE PRESENTS AN IDEAL
VEHICLE TO ADDRESS THE QUESTION
PRESENTED.......................................................6

III. THE DECISION BELOW IS WRONG...............7
A. The State Fails To Refute That Katz
Calls For Reexamination Of Congress’s
Authority Under The Intellectual
Property Clause ............................................. 7
B. The State Fails To Engage How The
CRCA’s Legislative Record Implicates
Congress’s Enforcement Power Under
The Fourteenth Amendment ......................... 9
CONCLUSION ..........................................................13

 ii
TABLE OF AUTHORITIES
Cases

Page(s)

Am. Civil Liberties Union v. Mukasey,
534 F.3d 181 (3d Cir. 2008) ...............................4, 5
Ashcroft v. Am. Civil Liberties Union,
535 U.S. 574 (2002)................................................4
Ass’n of Am. Med. Coll. v. Cuomo,
928 F.2d 519 (2d Cir. 1991) .................................11
Barajas-Alvarado v. United States,
566 U.S. 968 (2012)................................................5
Cent. Va. Cmty. Coll. v. Katz,
546 U.S. 356 (2006)................................1, 2, 7, 8, 9
City of Boerne v. Flores,
521 U.S. 507 (1997)..............................................12
Dep’t of Transp. v. Ass’n of Am. R.R.s,
573 U.S. 930 (2014)................................................4
EEOC v. Wyoming,
460 U.S. 226 (1983)................................................9
Fla. Prepaid Postsecondary Educ. Expense Bd.
v. Coll. Sav. Bank,
527 U.S. 627 (1999)................................1, 7, 10, 11
Gonzales v. Raich,
545 U.S. 1 (2005)....................................................3
Henry v. City of Rock Hill,
376 U.S. 776 (1964)................................................5
Kimel v. Fla. Bd. of Regents,
528 U.S. 62 (2000)................................................10

 iii
Maricopa Cnty., Ariz. v. Lopez-Valenzuela,
135 S. Ct. 428 (2014)..............................................3
Pennsylvania v. Union Gas Co.,
491 U.S. 1 (1989)....................................................8
Seminole Tribe of Fla. v. Florida,
517 U.S. 44 (1996)..................................................7
Tenn. Valley Auth. v. Whitman,
336 F.3d 1236 (11th Cir. 2003)..............................4
Tyler v. Cain,
533 U.S. 656 (2001)................................................5
United States v. Bajakajian,
524 U.S. 321 (1998)................................................3
United States v. Gainey,
380 U.S. 63 (1965)..................................................3
United States v. Kebodeaux,
570 U.S. 387 (2013)................................................3
Univ. of Houston v. Chavez,
517 U.S. 1184 (1996)..............................................5
Yazzie v. United States,
546 U.S. 921 (2005)................................................5
Constitution, Statutes and Rules
U.S. CONST. art. I, § 8, cl. 8 .........................................1
17 U.S.C. 107 .............................................................11
17 U.S.C. 201(d)(1) ......................................................9
Other Authorities
THE FEDERALIST NO. 43
(Clinton Rossiter ed. 2003) ....................................8

 iv
H.R. Rep. No. 101-887 (1989)....................................10
Melville B. Nimmer & David Nimmer,
8 NIMMER ON COPYRIGHT, App. 7(C)
(rev. ed. 2018).........................................................8
Gideon Parchomovsky & Alex Stein,
Intellectual Property Defenses, 113 COLUM.
L. REV. 1483 (2013) ................................................9
William F. Patry, 4 PATRY ON COPYRIGHT
§ 10:73 (2019) .......................................................11
Pet. for Cert., Am. Snuff Co. v. United States,
569 U.S. 946 (2013) (No. 12-521), available
at 2012 WL 5353900 (Oct. 26, 2012) .....................5
Pet. for Cert., Iancu v. Brunetti,
139 S. Ct. 782 (2019) (No. 18-302), available
at https://www.justice.gov/sites/default/files/
briefs/2018/09/10/18-302_brunetti_pet.pdf
(Sept. 7, 2018).........................................................3
Pet. for Cert., Intercollegiate Broad. Sys., Inc. v.
Copyright Royalty Bd.,
569 U.S. 1004 (2013) (No. 12-928), available
at 2013 WL 315711 (Jan. 25, 2013).......................5
Pet. for Cert., Leavitt v. Tenn. Valley Auth.,
541 U.S. 1030 (2004) (No. 03-1162), available
at 2004 WL 304351 (Feb. 13, 2004).......................4
S. Rep. No. 101-305 (1990)........................................11
Stephen M. Shapiro et al., SUPREME COURT
PRACTICE (10th ed. 2013) ...................................3, 5
J. Daniel Yu, Trapped! Avoiding a Potential
Pitfall of Nevada’s Open Meeting Law, 24
NEV. LAW. 17 (Mar. 2015) ....................................11

 INTRODUCTION
The State’s brief in opposition (“BIO”) confirms
that this Court should grant review, as it typically
does when a lower court invalidates an Act of
Congress.
After suggesting it should be a foregone conclusion
that no Article I power can justify Congress’s
abrogation of state sovereign immunity, the State
grudgingly concedes this Court’s precedent is now to
the contrary. In a belated footnote (BIO 16-17 n.6),
the State posits what should happen “if this Court
takes a clause-by-clause approach to evaluating
Congress’s abrogation powers,” as this Court did in
Central Virginia Community College v. Katz, 546
U.S. 356 (2006), where it recognized such power
under the Bankruptcy Clause. But neither the
Fourth Circuit nor any other court—including this
Court in Florida Prepaid Postsecondary Education
Expense Board v. College Savings Bank, 527 U.S. 627
(1999)—has ever accorded such analysis to Article I,
Section 8, Clause 8 (the “Intellectual Property
Clause”). If Congress is to be foreclosed from using
its Intellectual Property power to abrogate sovereign
immunity, then clause-specific explanation should
emerge from this Court’s rigorous examination upon
plenary review, as in Katz—not from a respondent’s
footnote opposing certiorari.
Nor should it be assumed the CRCA fails scrutiny
relative to Congress’s power under Section 5 of the
Fourteenth Amendment. Lower courts have given
short shrift to this inquiry, too, by equating the
legislative record underlying the CRCA with the one
this Court analyzed in Florida Prepaid. In actuality,
the relevant legislative records differ substantially

 2
and so do the legal backdrops for copyrights versus
patents, as Register of Copyright Ralph Oman—who
spent a year compiling the 150-page report Congress
commissioned for the CRCA—emphasizes here as
amicus. See Br. of Ralph Oman as Amicus Curiae
Supporting Petitioners (“Oman Br.”) 6-19. Far from
providing comfort, lower courts’ “striking consensus”
(BIO 12) on this issue is concerning: Unless this
Court intercedes, Congress’s hard work in enacting
the CRCA will have been casually discarded.
The decision below sanctions continued trampling
of federal copyrights by States without any
meaningful check. See Br. of David Nimmer et al. as
Amici Curiae Supporting Petitioners (“Scholars Br.”)
2 (“[c]opyright infringement by state actors has
become a serious problem” with “few (if any)
remedies”). Amicus Recording Industry Association
of America (“RIAA”) warns that the “serious and
accelerating problem” of state copyright infringement
will persist absent review. Br. of RIAA as Amicus
Curiae in Support of Petitioners (“RIAA Br.”) 3-10.
Beyond the policy concerns at stake, this case
affords opportunity for this Court to apply Katz to
the Intellectual Property Clause as an Article I
power, and to evaluate the unique legislative record
surrounding the CRCA.
Only this Court can
adequately address these issues and show due
dignity to its coordinate branch. There is no reason
to wait and no better vehicle coming.

 3
ARGUMENT
I.

THE STATE DOES NOT DENY THAT
INVALIDATION OF A FEDERAL STATUTE
CUSTOMARILY TRIGGERS THIS COURT’S
REVIEW

It is undisputed that the Fourth Circuit
“exercise[d] … the grave power of annulling an Act of
Congress” on constitutional grounds. United States
v. Gainey, 380 U.S. 63, 65 (1965). The “obvious
importance” of that decision itself warrants this
Court’s immediate review, Gonzales v. Raich, 545
U.S. 1, 9 (2005), irrespective of any circuit split. See
Pet. 12 (citing cases). As the Solicitor General noted
in obtaining a grant earlier this Term—without a
circuit split—“any decision invalidating an Act of
Congress on constitutional grounds is significant.”
Pet. for Cert. 11, Iancu v. Brunetti, 139 S. Ct. 782
(2019)
(No.
18-302),
available
at
https://www.justice.gov/sites/default/files/briefs/2018/
09/10/18-302_brunetti_pet.pdf (Sept. 7, 2018) (citing
cases); see also, e.g., United States v. Kebodeaux, 570
U.S. 387, 391 (2013) (granting review because “a
Federal Court of Appeals has held a federal statute
unconstitutional” notwithstanding absence of circuit
split); United States v. Bajakajian, 524 U.S. 321, 327
(1998) (similar); Stephen M. Shapiro et al., SUPREME
COURT PRACTICE 264 (10th ed. 2013) (“Where the
decision
below
holds
a
federal
statute
unconstitutional … certiorari is usually granted
because of the obvious importance of the case.”); cf.
Maricopa Cnty., Ariz. v. Lopez-Valenzuela, 135 S. Ct.
428, 428 (2014) (Thomas, J., respecting denial of
stay) (“We have recognized a strong presumption in
favor of granting writs of certiorari to review

 4
decisions of lower courts holding federal statutes
unconstitutional.”).
Moreover, there is no prospect here of further
percolation among courts of appeals. As the State
observes (BIO 11-12), lower courts have “uniformly”
refused to enforce the CRCA, and the Solicitor
General has “stopped defending the law.” Thus, as
amicus RIAA aptly puts it, the question presented “is
stagnating” rather than percolating. RIAA Br. 16.
Nor does the State deny the pressing practical
problems posed by the decision below. See Pet. 1719; RIAA Br. 8-10; Scholars Br. 2.
Without denying the importance of the Question
Presented, the State cites (BIO 13-15 & n.5) isolated,
inapposite cases where this Court denied certiorari;
in only two of those cases (both distinguishable) was
this Court asked to review a lower court’s
invalidation of a federal statute. See Am. Civil
Liberties Union v. Mukasey, 534 F.3d 181, 184 (3d
Cir. 2008), cert. denied 555 U.S. 1137 (2009)
(“ACLU”); Tenn. Valley Auth. v. Whitman, 336 F.3d
1236, 1240 (11th Cir. 2003), cert. denied 541 U.S.
1030 (2004).1 For the past decade, no less than
previously, this Court has continued to grant
certiorari in cases like this without awaiting any
circuit split. See, e.g., Dep’t of Transp. v. Ass’n of
1

In ACLU, the Court had already granted certiorari and, on
the merits, enumerated the applicable test to resolve that
dispute. See Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564
(2002). In Tennessee Valley Authority, the EPA did not seek
reversal of a final judgment but of a non-final agency order.
See Pet. for Cert., Leavitt v. Tenn. Valley Auth., 541 U.S. 1030
(2004) (No. 03-1162) (Feb. 13, 2004).

 5
Am. R.R.s, 573 U.S. 930 (2014) (granting review of
decision holding federal statute unconstitutional,
notwithstanding absence of circuit split and
respondent’s similar invocation of ACLU).2
The State further misplaces reliance (BIO 5) on
this Court’s decision to grant review, vacate and
remand (“GVR”) in University of Houston v. Chavez,
517 U.S. 1184 (1996). A GVR “does ‘not amount to a
final determination of the merits.’” Shapiro, supra,
at 349 (quoting Henry v. City of Rock Hill, 376 U.S.
776, 777 (1964)); see also Tyler v. Cain, 533 U.S. 656,
666 n.6 (2001) (GVR “was not a ‘final determination
on the merits’”).
Nor are this Court’s passing
comments about the CRCA (BIO 5) a substitute for
plenary review.

2

Tellingly, other cases the State cites (BIO 13-15 & n.5) did
not urge review of a lower court’s invalidation of a federal law.
Pet. for Cert., Intercollegiate Broad. Sys., Inc. v. Copyright
Royalty Bd., 569 U.S. 1004 (2013) (No. 12-928) (Jan. 25, 2013)
(seeking review of decision upholding Copyright Act by revising
statutory language to cure potential constitutional error); Pet.
for Cert., Am. Snuff Co. v. United States, 569 U.S. 946 (2013)
(No. 12-521) (Oct. 26, 2012) (seeking review of part of decision
upholding statute on constitutional grounds); Barajas-Alvarado
v. United States, 566 U.S. 968 (2012) (denying petition of
criminal defendant to review decision affirming sentence based
on lack of prejudice, 655 F.3d 1077, 1079 (9th Cir. 2011));
Yazzie v. United States, 546 U.S. 921 (2005) (denying petition of
criminal defendant to review decision affirming sentence based
on harmless error, 407 F.3d 1139, 1142 (10th Cir. 2005)).

 6
II. THE STATE DOES NOT DISPUTE THAT
THIS
CASE
PRESENTS
AN
IDEAL
VEHICLE TO ADDRESS THE QUESTION
PRESENTED
This case affords a pristine vehicle for deciding the
Question Presented, and the State does not contend
otherwise.
Indeed, the facts of this case highlight why the
Court should grant review. Contrary to the State’s
suggestion (BIO 6) that its alleged violations were
discrete and fleeting, they vividly demonstrate how a
recalcitrant State can repeatedly infringe, without
accountability or check, while copyright holders play
a futile, unending game of whack-a-mole. After
Nautilus spent nearly two decades creating works by
photographing and filming (at considerable risk)
underwater excavation of Blackbeard’s famed Queen
Anne’s Revenge, the State brazenly pirated them.
Pet. App. 9a. Then, after briefly agreeing to cease its
infringement, the State not only resumed but passed
a statute purporting to haul Nautilus’s works into
the public domain. Pet. App. 43a-45a. According to
the decision below, however, Petitioners have no
recourse once the State purports to have ceased the
latest round of violations Nautilus managed to
identify. Pet. App. 19a-21a.
If the decision below stands, aggrieved copyright
holders like Nautilus effectively have no recourse for
recurring infringement by States. As explained by
amicus RIAA, there is no meaningful remedy short of
that provided by the CRCA. See RIAA Br. 10-16; see
also Pet. 19-20. The “value” of a copyright resides in
the ability to enforce it, RIAA Br. 10, and the
practical upshot of the decision below renders

 7
copyrights virtually unenforceable against States, id.
at 11-14.
III. THE DECISION BELOW IS WRONG
A. The State Fails To Refute That Katz
Calls For Reexamination Of Congress’s
Authority
Under
The
Intellectual
Property Clause
The State erroneously relies (BIO 1, 3-4) on the
sweeping, unexamined assumption from Seminole
Tribe of Florida v. Florida, 517 U.S. 44 (1996) that
no Article I power authorizes Congress to abrogate
sovereign immunity. That is precisely the overbroad
assumption the Court repeated in Florida Prepaid
(without the issue being briefed) and Katz held “was
erroneous.” 546 U.S. at 363; Pet. 24-25. In Katz,
this Court corrected itself by holding that the States
“agreed in the plan of the Convention not to assert
any sovereign immunity defense they might have
had in proceedings brought pursuant to ‘Laws on the
subject of Bankruptcies.’” 546 U.S. at 377 (emphasis
added).
Only in a footnote (BIO 16 n.6) does the State
purport to come to grips with Katz and its “clause-byclause approach” to assessing whether a particular
Article I power authorizes abrogation of state
sovereign immunity. In then arguing why this Court
should still disallow abrogation upon specifically
examining the Intellectual Property Clause (id.), the
State tacitly concedes this Court has yet to answer
the Question Presented using the Katz methodology.
This alone is ample basis to grant review. See Pet.
23-24.

 8
On the merits, the Intellectual Property Clause
has its own unique constitutional history that
deserves “[c]areful study and reflection.” Katz, 546
U.S. at 363; see RIAA Br. 18-19; Pet. 23. Tellingly,
the State offers no explanation (BIO 17 n.6) why the
history of the Intellectual Property Clause is any less
“unique” than that of the Bankruptcy Clause or any
less indicative of a plan of the Convention waiver. It
is readily apparent how leaving individual States
free (without prospect of liability) to violate
copyrights and to disseminate copyrighted works as
they please would thwart the very notion of Congress
securing uniform federal protections. See Pet. 26-27;
Scholars Br. 8-9, 11-13.3
The State also does not address the text of the
Intellectual Property Clause, which empowers
Congress to bestow federal copyrights and “secur[e]”
protection for them nationwide. See Pet. 25. Nor
does the State address the Framers’ consensus that
“the utility of this power will scarcely be questioned.”
THE FEDERALIST NO. 43 at 268 (Clinton Rossiter ed.
2003); see Katz, 546 U.S. at 369. Notably, the
distinctive nature of the Intellectual Property Clause
ensures any abrogation will be discrete and confined
to the singular purpose of securing uniform
3

Without substantively addressing the history of the
Intellectual Property Clause or States’ susceptibility to suits for
copyright infringement, the State begins its historical account
(BIO 2) with Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989).
The State thereby skips past earlier decades of precedent and
practice supporting Congress’s power to subject the States to
suit for infringement. See Pet. 33 n.10; Scholars Br. 9-10 (citing
8 NIMMER ON COPYRIGHT, App. 7(C)).

 9
protection for intellectual property as federally
registered and bestowed. See Pet. 26-27. It is
unsatisfying, to say the least, that these defining
aspects of the Intellectual Property Clause would go
unconsidered by this Court, especially following
Katz.
Also contrary to the State’s gloss (BIO 17 n.6),
Katz’s allusion to “in rem jurisdiction” enhances the
case for abrogation under this Clause. Just as Katz
emphasized the in rem nature of bankruptcy, see 546
U.S. at 369-71, copyright involves in rem interests in
personal property, see Scholars Br. 11 & n.9; 17
U.S.C. 201(d)(1) (recognizing copyright as “personal
property”); Gideon Parchomovsky & Alex Stein,
Intellectual Property Defenses, 113 COLUM. L. REV.
1483, 1487 (2013) (“[I]ntellectual property rights are
rights in rem that avail against the rest of the
world.”). Indeed, unlike the sundry relations that
may occasion disputes between States and debtors in
bankruptcy, the property at issue in copyright
disputes has an inherently federal dimension from
its inception.
B. The State Fails To Engage How The
CRCA’s Legislative Record Implicates
Congress’s Enforcement Power Under
The Fourteenth Amendment
The State is similarly unpersuasive in contending
Congress did not validly abrogate state sovereign
immunity pursuant to Section 5. As a threshold
matter, the State errs by treating (BIO 15, 17) the
absence of express reliance by Congress on “Section
5” as preclusive. This Court has made clear that
“Congress need [not] anywhere recite the words
‘section 5’ or ‘Fourteenth Amendment.’” EEOC v.

 10
Wyoming, 460 U.S. 226, 243 n.18 (1983); see also
Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 78-80
(2000) (considering Section 5 as possible basis for
abrogation, even though Congress did not reference
it by name). And in enacting the CRCA, Congress
expressly stated its concern that States “are injuring
the property rights of citizens.” H.R. Rep. No. 101887, at 5 (1989).
Moreover, although the State summarily argues
(BIO 18-19) the congressional record underlying the
CRCA is “analogous” to the record in Florida
Prepaid, the State does not grapple with key
distinctions between the different legislative records.
Principal among them is the comprehensive, 50state, 150-page report Mr. Oman compiled at
Congress’s request, documenting mounting copyright
infringement by States and recommending the CRCA
as the appropriate, tailored remedy. See Oman Br.
6-19; Fla. Prepaid, 527 U.S. at 658 n.9 (Stevens, J.,
dissenting).
Not only does the legislative record pinpoint at
least twelve examples of reported infringement by
ten different States in the decade preceding the
CRCA, but it explains why this number was “just the
tip of the iceberg.” Oman Br. 9, 13; Register’s
Report, at ii, 8-9, 92-93. The legislative record
further explains why the same problem did not
manifest in earlier years, when States were
generally understood to face liability for copyright
infringement. See Pet. 33 n.10. The PRA, by
contrast, “provide[d] only two examples of patent
infringement suits against States” and “only eight
patent infringement suits prosecuted against the
States” in the previous 110 years. Fla. Prepaid, 527

 11
U.S. at 640, 643. Thus, whereas the PRA provided,
“at best … scant support for Congress’ conclusion
that States were depriving patent owners of property
without due process of law,” id. at 646, the legislative
history of the CRCA is considerably stronger, see id.
at 658 n.9 (Stevens, J., dissenting) (contrasting
legislative history and expressing “hope that the
[CRCA] may be considered ‘appropriate’ § 5
legislation” even under majority’s analysis).
The State is wrong to assert (BIO 19) that
Congress “barely” considered the adequacy of state
remedies for copyright infringement.
To the
contrary, the absence of alternative remedies drove
Congress to enact the CRCA, see Pet. 30-31; Oman
Br. 3, 14-16, after the lack of adequate remedies was
specifically spotlighted and substantiated, see
S. Rep. No. 101-305, at 8, 12 (1990).
Like lower courts, the State also overlooks crucial
distinctions between copyrights and patents. Thus,
the State fails to appreciate that copyright
infringement, unlike patent infringement, typically
involves an element of intentionality insomuch as it
requires outright copying. See Pet. 34-35. Atop that,
the CRCA incorporates other limitations peculiar to
copyright law, including the doctrine of fair use. See
17 U.S.C. 107 (fair use “is not an infringement of
copyright”); William F. Patry, 4 PATRY ON COPYRIGHT
§ 10:73 (2019) (“[F]air use is occasionally asserted [by
States] as a defense for unauthorized government
copying.”); J. Daniel Yu, Trapped! Avoiding a
Potential Pitfall of Nevada’s Open Meeting Law, 24
NEV. LAW. 17, 18 (Mar. 2015) (noting that fair use
applies to use of copyrighted works by governmental
entities); see also Ass’n of Am. Med. Coll. v. Cuomo,

 12
928 F.2d 519, 526 (2d Cir. 1991) (State protected by
fair use).
Simply stated, States’ copyright
infringement entails constitutional deprivation to an
extent that their patent infringement does not.
Most fundamentally, the State deviates (BIO 18)
from a sound conception of congruence and
proportionality. Contrary to the State’s premise, no
particular “magnitude” (BIO 19) of violations should
be prerequisite to Congress exercising its legislative
prerogative. This Court has never imposed such
shackles on its coordinate branch. See City of Boerne
v. Flores, 521 U.S. 507, 530-32 (1997). Judicial
inquiry properly focuses on congruence and
proportionality, not on absolute numbers, viewed in a
vacuum. Instead of demanding that Congress satisfy
some arbitrary numerical threshold, courts should
simply compare the nature and scope of the statutory
remedy against the constitutional problem identified.
Especially
considering
that
Congress
here
documented
mounting,
unchecked
copyright
infringement by States, its record-based findings and
predictions (since vindicated) deserve due credit.
Nevertheless, the State here second guesses (BIO
19-20) whether Congress should have better
“tailor[ed] the scope of the abrogation,” positing novel
legislative alternatives. Such criticism is not only
strained but incompatible with Congress’s legislative
competence, and with Congress’s judgment that
States should be deterred from compounding their
worsening infringement. See RIAA Br. 20-21.
The problem at issue is one of States infringing
federal copyrights without limitation or remedy.
After diligent fact-finding, Congress responded by
making States liable for copyright infringement, just

 13
as private infringers are. Such abrogation flows
naturally from Congress’s power under Section 5 and
should not be invalidated without this Court’s
searching review.
CONCLUSION
The petition should be granted.
Respectfully submitted,
TODD ANTEN
LISA M. GEARY
JOANNA E. MENILLO
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
51 Madison Avenue
New York, NY 10010
SUSAN FREYA OLIVE
DAVID L. MCKENZIE
OLIVE & OLIVE, P.A.
500 Memorial Street
Durham, NC 27701

DEREK L. SHAFFER
Counsel of Record
CHRISTOPHER LANDAU, P.C.
KATHLEEN LANIGAN
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
1300 I Street N.W.
Washington, DC 20005
(202) 538-8000
derekshaffer@
quinnemanuel.com

G. JONA POE, JR.
POE LAW FIRM, PLLC
P.O. Box 15455
Durham, NC 27704

Counsel for Petitioners
May 2, 2019