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State Pirates in the Dock

5 November 2019

Note: PG posted about this topic yesterday (See Blackbeard’s Revenge), but thought the following Wall Street Journal editorial provided a second useful perspective.

From The Wall Street Journal:

The Supreme Court has bolstered both state and property rights in recent decades, but on Tuesday it will mediate an ostensible conflict between the two. States argue they can’t be sued for copyright infringement, but sovereign immunity isn’t a constitutional license to steal intellectual property.

At issue in Allenv. Cooper is whether Congress validly abrogated state sovereign immunity in the 1990 Copyright Remedy Clarification Act. North Carolina published copyrighted video of the shipwrecked Blackbeard’s Queen Anne’s Revenge after it was discovered off the state’s coast. The state then passed a law appropriating the creator’s works into the public domain.

After the creator sued, North Carolina invoked the Supreme Court’s Seminole Tribe (1996) ruling that held Congress’s Article I powers generally don’t trump state sovereign immunity. In Florida Prepaid (1999) the Court also said Congress could not use its Article I powers to abrogate state immunity against patent infringement.

. . . .

Prior to passing the 1990 law, Congress documented a pattern of willful state copyright infringement. One state-operated nursing home copied and sold a publisher’s educational materials. The Chamber of Commerce says more than 150 copyright cases have been filed against states since 2000. That’s probably low since many small businesses lack resources to detect infringement. The Software & Information Industry Association found 77 infringements by states over six years.
. . . .

Public schools are some of the worst offenders. Georgia State University created an online system that encouraged professors to make unlicensed chapters of books available for download. Professors regularly copy and distribute texts to classes, though public universities in a brief claim there are few cases of willful infringement.

Dow Jones, which publishes the Wall Street Journal, has submitted an amicus brief in the case detailing how the California Public Employees Retirement System (Calpers) reproduced 53,000 articles from 4,500 publishers in eight years. It also distributed the articles in a daily newsletter to recipients in and outside of the pension fund. If it were a private pension fund, Calpers could be sued for hundreds of millions of dollars in damages for copyright infringement. But Calpers claimed sovereign immunity as an arm of the state and ultimately agreed to settle with Dow Jones for a mere $3.4 million and two other large publishers for $600,000.

Link to the rest at The Wall Street Journal (Sorry if you encounter a paywall)

Copyright/Intellectual Property

One Comments to “State Pirates in the Dock”

  1. According to an AP article I read in the paper today, NC signed an agreement with Insel about the copyrighted material then broke the contract. Apparently, it believes that contracts only control everyone else’s behavior.

    https://www.readingeagle.com/ap/article/blackbeards-ship-case-about-images-returns-to-trial-court

    I’ve been writing about digital copyright for years, and the biggest jerks who replied to my articles weren’t pirates but school and public librarians who think that they are above the law. So, yeah. I totally believe those numbers.

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