Blackbeard’s Revenge: Sovereign Immunity and Copyright

From Plagiarism Today:

In 1718 Edward Teach, better known as the pirate Blackbeard (or Black Beard), deliberately beached and sank his iconic ship, the Queen Anne’s Revenge. As he was doing so, he likely wasn’t thinking about how his shipwreck would become the center of a major copyright lawsuit 200 years in the future.

However, that’s exactly what happened.

It’s a weird twist of circumstances and happenings that bring us to where we are today, on the eve of what could be one of the most important copyright cases to go before the Supreme Court.

But the issue isn’t really one of copyright. Pretty much no one doubts that the work involved has been infringed, it has to do with sovereign immunity and the question of whether states can be held accountable for copyright infringement at all.

. . . .

The wreckage of the Queen Anne’s Revenge was found in 1996 by Intersal, a private salvage company. In 1998 they reached an agreement with the state of North Carolina, the state that controls the water the wreck rests in, that granted the company the right to take photos and videos of the wreck.

Intersal brought in Nautilus, a film production company, to perform the videography and capture the images and footage.

However, disputes quickly arose between the two sides and a new agreement was reached in 2013. That agreement would be short-lived as, in 2015, the state of North Carolina passed a new law that placed all images related to the excavation of the Queen Anne’s Revenge as the property of the state and made them public records.

This, effectively, removed all copyright protection from the works and, to make matters worse, the state was using the footage both on their website and their YouTube channels.

Intersal and Nautilus filed a lawsuit against the state but there was a difficult wrinkle. The Eleventh Amendment grants states what is known as sovereign immunity, which means that they can not be sued in federal courts. Copyright claims, however, can only be pursued in a federal court, creating an impasse.

Congress attempted to rectify this in 1990 by enacting the Copyright Remedy Clarification Act (CRCA), which states:

Amends federal copyright law to provide that any State, State instrumentality, or officer or employee of the State or State instrumentality is liable to the same extent as any nongovernmental entity for: (1) copyright infringement… Denies sovereign immunity to any State for such violations and provides the same remedies as are available against other private or public entities, including attorney’s fees.

North Carolina argues that the law is overly broad and that Congress overstepped its constitutional authority when passing it.

Though the plaintiffs did manage to win in a district court, the Fourth Circuit Court of Appeals agreed with the state and ruled against Intersal and Nautilus.

They appealed and now the case is scheduled to go before the Supreme Court of the United States tomorrow. When it does, it will be asking one of the most important and one of the most thorny copyright-related questions in modern history.

. . . .

First, the Eleventh Amendment grants states sovereign immunity simply reading:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

However, that immunity is somewhat limited by the Fourteenth Amendment, which was adopted in 1868, during the aftermath of the Civil War. That amendment lays down who is considered a citizen and says that:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Fourteenth Amendment also gives Congress the power to enforce the provisions of the amendment through the use of “appropriate legislation.”

When Congress passed the CRCA in 1990, it was essentially trying to place a limit on state sovereign immunity in order to ensure that they could be held liable for copyright infringement violates the same as any business or individual. The bill was also joined by similar laws covering patent and trademark.

Link to the rest at Plagiarism Today

1 thought on “Blackbeard’s Revenge: Sovereign Immunity and Copyright”

  1. Wow. Thorny issue this. I see it finely balanced between the two sides, but I give the state the better of it based on the 11th Amendment. Still I want to read written arguments from both sides and perhaps hear oral arguments, too, before reaching a decision.

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