The U.S. Supreme Court will decide whether state governments have sovereign immunity from copyright lawsuits brought by private citizens. On Monday, the high court agreed to review a petition from Rick Allen's Nautilus Productions, which is pursuing North Carolina and its Department of Natural and Cultural Resources for posting online footage of the remains of notorious pirate Blackbeard's flagship, Queen Anne's Revenge, which ran aground at Beaufort, N.C., in 1718.
The dispute centers on a federal law passed in the early 1990s that explicitly abrogated state sovereign immunity in cases involving intellectual property. Allowing lawsuits against state government was seen as needed at the time thanks to the Eleventh Amendment to the U.S. Constitution, which prohibits federal courts from entertaining citizen suits against a state. A series of follow-up cases involving patents left in doubt the constitutionality of the Copyright Remedy Clarification Act.
As for the dispute at hand, Allen shot his footage of the salvaging of Queen Anne's Revenge in 1998. He registered his works with the U.S. Copyright Office.
In 2013, Allen accused North Carolina of copyright infringement because the state had posted a few images of the shipwreck on its website. North Carolina came to a settlement agreement with Allen, paying him $15,000 for the infringements, but after taking the images down, the Department then posted five short videos and one photograph from the recovery expedition. Allen filed suit. Afterward, North Carolina state lawmakers passed §121-25(b) — Allen dubs it "Blackbeard's Law" — which treats all photographs, video recordings and other documentary materials of a derelict vessel or shipwreck or its contents as "public record."
And thus, big questions: Can North Carolina insulate itself by putting any copyrighted work in the public domain? What recourse do copyright holders have when the copyright pirate is state government? Is Congress justified under Article I of the Constitution to abrogate state immunity? Or does the 14th Amendment justify such a federal law against the due process violations of a state?
The Recording Industry of Association of America weighed in with an amicus brief that supported the Supreme Court's review. According to the music lobbying group, a decision by the Fourth Circuit Court of Appeals in favor of North Carolina in the case brought by Allen, created a troublesome development.
"States are once again free to engage in copyright infringement — no matter how widespread or blatant — without fear of having to pay any money as a result," stated the amicus brief. "Unsurprisingly, then, despite Congress's efforts, copyright infringement by States is once again a very serious problem."
Citizens can still go to court to obtain injunctions, but that's a time-consuming process that leaves out the possibility of recovering monetary damages. Additionally, by focusing on the separation of powers between federal and state government, this case could have sneaky significance in other realms. Frederick Allen v. Roy A. Cooper went under the radar during the appellate process, but that is about to change.
“We are obviously gratified that the United States Supreme Court has agreed to hear our case," says Allen. "The Constitution of the United States of America expressly empowers Congress to grant copyright holders ‘the exclusive right to their respective writings and discoveries.’ We look forward to making our case to the Supreme Court as to why it was within Congress’s constitutional authority to hold states liable for their acts of copyright infringement.”