Blackbeard’s Revenge: Sovereign Immunity and Copyright

Blackbeard couldn't have imagined this piracy battle...

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.

It sounds like a bizarre question but, when your case involves Blackbeard’s ship, nothing is going to be ordinary.

Blackbeard and Another Kind of Piracy

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.

The Question of Sovereign Immunity

In July 2000, the U.S. Copyright Office issued a lengthy statement on the issue to the House Subcommittee on Courts and Intellectual Property Committee on the Judiciary. The statement outlines much of the history of sovereign immunity in the country, especially as it pertains to intellectual property.

To that end, the question of sovereign immunity and copyright is both surprisingly old and surprisingly young at the same time, with the first case coming in 1962. That is 172 years after the passing of the first Copyright Act and 167 years after the passing of the Eleventh Amendment.

Still, it seems old considering that the Supreme Court is just now taking up this specific issue

Though the full history of how courts have approached this issue is complicated and varied, where we sit today comes mostly down to two amendments.

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.

Those laws have not enjoyed a great deal of success in courts. The Patent and Plant Variety Remedy Clarification Act, which has similar language to the CRCA, was struck down as unconstitutional by the Supreme Court in 1999.

Meanwhile, the CRCA hasn’t fared much better. District courts in nearly every circuit have ruled against the constitutionality of the act and a strong majority believe it to be unconstitutional. That said, this is the first time the Supreme Court has taken a look at this specific act.

Still, given the history of the CRCA (and its sibling acts) it’s hard to be optimistic that it will survive, though others clearly disagree. Either way, we will likely know more about where the court is likely to stand after the hearing tomorrow.

What’s At Stake

On the surface, this might not seem like a huge deal for most rightsholders. Though there are examples of states infringing works, it’s nowhere near the level of piracy committed by citizens and corporations.

While this is true, there are a few things to keep in mind.

First, state universities have been repeatedly held to be a part of the state for the purpose of sovereign immunity. Many creators make all or a significant portion of their revenue from universities and a blanket sovereign immunity against copyright infringement could drastically alter those relationships.

Universities have been one of the major battlegrounds of this particular issue and have even been an issue with fighting piracy taking place on university networks.

Second, we don’t know how states will respond if they are granted blanket immunity to copyright infringement claims. Though some have already waived their immunity, as noted by the U.S. Copyright Office, others have not.

While it’s unlikely that states will start creating massive piracy operations to pad their budget, North Carolina has proved that at least they are willing to be very bold about infringing the work of their citizens. They not only went back on two separate deals and infringed the work on their own site, they effectively stripped the work of copyright protection.

If other states choose to follow North Carolina’s lead whenever it suits them, it could be very bad news for creators. It’s not a likely outcome but, after the actions of North Carolina, it’s not one we can dismiss out of hand.

As such, a lot is at stake in this upcoming Supreme Court case but the answers don’t really lie in copyright law. Instead, they are in much larger constitutional issues about state sovereign immunity and when Congress is allowed to place limits on it.

No matter how you feel about this case, it’s definitely going to be an important one to watch.

Bottom Line

In the end, the question is this: Does sovereign immunity grant states the freedom to infringe copyright with near impunity or was Congress within its rights when it passed the CRCA?

It’s a messy question that has decades of direct case history and centuries related case law.

No matter what is decided it will be good to get a decisive answer to the question. Even if the court rules against the plaintiffs, it may open the door for Congress to revisit the issue and draft a law that will pass constitutional muster.

However, if this is an issue that would require another constitutional amendment, it may simply go unresolved. The prospects of getting a constitutional amendment ratified in 2019 are not good under the best of circumstances. It’s even worse considering it would require 3/4 of the states to ratify an amendment that would open them up to additional liability.

When it’s all said and done, this will be a ruling closely watched and studied not just by those interested in copyright issues, but those interested in the balance of state and federal rights.

When Blackbeard scuttled his ship 200 years ago, he had no way of knowing that this battle would come from its discovery. However, if he did, it’s easy to imagine he would have a good laugh about it…

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