Justices Find States Immune From Federal Copyright Claims

WASHINGTON (CN) – In a case that stars the fearsome pirate Blackbeard’s prized ship Queen Anne’s Revenge, the Supreme Court on Monday ruled states cannot be sued in federal court for copyright infringement.

Queen Anne’s Revenge ran aground near Beaufort Inlet in North Carolina, perhaps at Blackbeard’s orders, and was lost to history for the better part of three centuries. But in 1996, a private salvage company called Intersal found the ship’s watery grave and began the work of bringing from the depths secrets that could fill out the life of perhaps history’s most infamous pirate.

Engraving of Blackbeard the pirate.

To document that work, Intersal hired Frederick Allen’s production company, Nautilus Productions. Over the course of the ensuing two decades, Nautilus compiled a portfolio of videos and other images from the wreck, which Allen copyrighted.

Allen eventually noticed North Carolina had posted some of the images online and in 2013 reached a settlement agreement with the state. Under the agreement, the state paid $15,000 and agreed not to violate the copyrights going forward, though it maintained it could use the images for noncommercial purposes.

After North Carolina passed a law that made videos and pictures of shipwrecks in the state’s custody public record, Allen noticed the state had again used some of his company’s work in videos posted online. He sued North Carolina and state officials in 2015 for copyright infringement.

Though a federal judge initially let Allen press his claims, the Fourth Circuit tossed the claims out, ruling the state enjoyed immunity from suit in federal court under the 11th Amendment. This was true, the circuit ruled, because Congress had not validly abrogated state sovereign immunity in the Copyright Remedy Clarification Act, a 1990 law that was meant to open states up to federal copyright infringement lawsuits.

A unanimous Supreme Court agreed on Monday, with Justice Elena Kagan writing that the court’s precedent tied the justices’ hands in holding Congress lacked authority to strip states of their immunity to federal copyright infringement suits with the CRCA.

Allen pressed his claims based on two provisions of the Constitution — Article I’s intellectual property clause and the 14th Amendment — but Kagan explained the court’s decision in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank already addressed both arguments in the context of patent infringement and found them lacking.

As for the 14th Amendment arguments, Kagan specifically wrote that the law at issue in Florida Prepaid was not based on a “pattern of unconstitutional patent infringement” on the part of the states. Congress based the CRCA on a similarly thin record of states taking advantage of their ability to sail past copyright laws without fear of suit, Kagan wrote.

But the Obama appointee did acknowledge Congress could in the future strip states of their immunity from federal copyright infringement lawsuits under the 14th Amendment with a more precise statute that is supported by evidence.

“That kind of tailored statute can effectively stop states from behaving as copyright pirates,” Kagan wrote. “Even while respecting constitutional limits, it can bring digital Blackbeards to justice.”

Joined by Justice Ruth Bader Ginsburg, Justice Stephen Breyer wrote while he agreed with Kagan that Florida Prepaid made the court’s decision in the case at hand correct, he believes the court’s earlier decisions allowing states to evade copyright and patent lawsuits were mistaken. Breyer wrote it is unclear what exactly Congress would need to do in order to strip states of their immunity from suit.

“That our sovereign-immunity precedents can be said to call for so uncertain a voyage suggests that something is amiss,” Breyer wrote.

Though he joined Kagan’s opinion, Justice Clarence Thomas wrote separately to quibble with parts of her ruling. First, Thomas objected to Kagan’s standard for revisiting old precedents, arguing the court should be able to revisit precedents that are “demonstrably erroneous.”

He also split with Kagan’s discussion of a hypothetical statute that would allow Congress to strip states of immunity from copyright infringement suits, saying the court should stick to the case before it.

“We should not purport to advise Congress on how it might exercise its legislative authority, nor give our blessing to hypothetical statutes or legislative records not at issue here,” Thomas wrote.

Allen said the decision leaves copyright holders powerless to vindicate their intellectual property rights when states infringe.

“We are saddened by the court’s decision,” Allen said in a statement. “The state of North Carolina routinely and vigorously enforces its own copyrights, yet simultaneously hides behind sovereign immunity when it violates the intellectual property rights of its own citizens. The Constitution and Congress of the United States call for a different result.”

North Carolina Attorney General Josh Stein said his office is “pleased” by the court’s ruling.

“In today’s ruling, the court unanimously upheld longstanding precedents recognizing that all states retain certain core aspects of sovereignty, including sovereign immunity from copyright lawsuits,” Stein said in a statement.

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