In High Court Seas, Blackbeard’s Ship Sails Again

WASHINGTON (CN) – For a year in the early 18th century, the fearsome pirate Blackbeard terrorized the Caribbean and the Atlantic coast of what would become the United States aboard his prized Queen Anne’s Revenge.

Engraving of Blackbeard the pirate.

That audacious reign ended in 1718, however, when the ship ran aground, perhaps at the pirate’s order, near Beaufort Inlet in North Carolina. For the better part of three centuries, the lost ship was consigned to tall tales and legends of the dreaded pirate’s conquests.

Then, in 1996 a private salvage company called Intersal found Queen Anne’s Revenge in its watery grave, a discovery that has unearthed countless historical artifacts and helped fill out the life of perhaps history’s most famous pirate.

And though her once-feared guns have long been silent, Blackbeard’s ship came to life again Tuesday morning at Supreme Court in a case implicating copyright law, the Constitution and whether states can be sued for infringement in federal courts.

Frederick Allen’s production company, Nautilus Productions, has for roughly 20 years documented Intersal’s efforts to recover the wreck as the salvage company works under a contract with North Carolina.

Allen registered copyrights for the images and videos, but he found that the state had posted some of the images online. In a 2013 settlement reached, the state maintained it could use images for noncommercial purposes but paid Nautilus $15,000 and agreed not to violate the copyrights going forward.

North Carolina enacted a law in August 2015, however, that made photographs and videos of shipwrecks in the state’s custody, including those it got through its work with businesses, public record. After the state posted five videos online that included some of Nautilus’ work, Allen sued North Carolina and state officials later that year for copyright infringement.

Initially a federal judge allowed Allen’s case to go forward, but the Fourth Circuit reversed on appeal, saying Congress had not abrogated state sovereign immunity when it passed the the Copyright Remedy Clarification Act in 1990.

Arguing at the Supreme Court for Allen on Tuesday, Quinn Emanuel attorney Derek Shaffer said Congress opened states up to federal copyright suits in the CRCA both through its authority under the 14th Amendment and the Article I intellectual property clause, which is unique in its grant of authority to Congress.

He said Congress was addressing an emerging threat when it passed the law and that, without the fear of having to pay monetary damages, states would effectively be free to plunder copyrighted works at will.

“This is exactly what Congress looked at,” Shaffer said. “They said the rule in copyright cases, absent the CRCA, is that copyright infringement pays for states. They will get away with it every time. You will not have copyright holders who have incentives and means and attorneys to bring suit. That should not be the outcome in this case.”

While the justices seemed generally more agreeable to Shaffer’s arguments, some wondered if siding with him would mean previous decisions that have upheld state sovereign immunity in intellectual property cases would have to walk the plank.

“All that would be highly persuasive if we didn’t have the patent decision, the Florida Prepaid decision,” Justice Ruth Bader Ginsburg said, referring to the 1999 case in which the Supreme Court struck down a law that sought to eliminate state sovereign immunity in patent law. “It is the very same clause.”

In his return volley, North Carolina Deputy Solicitor General Ryan Park argued the framers would be surprised to learn the Constitution authorized Congress to eliminate state sovereign immunity in copyright claims, as there is no historical evidence they meant to do so with the intellectual property clause.

“Congress could not commandeer state legislatures and force them to pass copyright protection laws, nor could they, under separation of powers principles, vest judicial review of copyright claims in the Senate Judiciary Committee,” Park said. “And likewise, state sovereign immunity limits Congress’ authority to expose state treasuries to the Copyright Act’s exorbitant financial remedies.”

He argued exposing states to monetary damages under federal copyright law would be wholly disproportionate to the perceived problem of state copyright infringement and that copyright holders have other avenues to vindicate their rights if they think they have been infringed.

Justice Elena Kagan cut into Park’s argument by wondering how much more clear Congress could have been that it wanted to eliminate state sovereign immunity from federal copyright suits and how it would be unfair to put states on the hook in the same way that every other copyright infringer already is.

Similarly, Justice Stephen Breyer expressed concern that if the court were to side with North Carolina, it might give states blanket permission to infringe with little real chance of being held accountable.

“What the state decides to do with its own website, charging $5 or something, is to run “Rocky,” Marvel-whatever, “Spider-Man” and perhaps “Groundhog Day,” all right?” Breyer said. “Now, great idea. Several billion dollars flows into the treasury. Okay? Now, if you win, why won’t that happen?”

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