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Pirate ship copyright dispute sails before Supreme Court

BridgeTower Media Newswires//November 7, 2019

Pirate ship copyright dispute sails before Supreme Court

BridgeTower Media Newswires//November 7, 2019

By Correy Stephenson
BridgeTower Media Newswires

pirate-ship_mainA sunken pirate ship off the coast of North Carolina that triggered a copyright dispute with implications for state sovereign immunity will be heard by the U.S. Supreme Court.

In 1996, the Queen Anne’s Revenge was discovered off the coast of North Carolina. Originally a French ship, Blackbeard captured the vessel in the fall of 1717 and made it his flagship. The infamous pirate, born Edward Teach, abandoned the ship the following year after it ran aground about a mile off the coast of Beaufort.

While the ship is the property of the state, Nautilus Productions and owner Rick Allen spent two decades documenting the ship’s salvage and recovery. The company copyrighted photos and videos of the ship.

Allen sued in December 2015, alleging that the copyrights were violated when the state posted six videos to various websites, including a state-operated YouTube channel, and also used a photograph in a maritime museum newsletter.

A federal district court denied the state’s motion to dismiss the suit, relying on the federal Copyright Remedy Clarification Act, or CRCA, a 1990 law that permits private parties to sue states for violations of federal copyright law.

North Carolina appealed, arguing that the law unconstitutionally abrogated states’ rights and that the state was immune from suit. The 4th U.S. Circuit Court of Appeals agreed, dismissing the suit.

The 4th Circuit found that lawmakers had failed to properly rely upon Section 5 of the 14th Amendment, which allows Congress to abrogate sovereign immunity, when enacting the statute, citing similar decisions from other circuits.

“Not only did Congress not invoke its authority under §5, it also did not, as required, limit the scope of the Copyright Remedy Clarification Act to enforcement of rights protected by the Fourteenth Amendment,” Judge Paul Niemeyer wrote. “Rather, in abrogating sovereign immunity, Congress used language that sweeps so broadly that the Act cannot be deemed a congruent and proportional response to the Fourteenth Amendment injury with which it was confronted.”

Allen filed a writ of certiorari to the Supreme Court, and the justices agreed to hear the dispute.

On Nov. 5, the Court will hear oral argument to answer the question of whether Congress validly abrogated state sovereign immunity via the CRCA in providing remedies for authors of original expression whose federal copyrights are infringed by states.

Walking the copyright plank

The case “is important to copyright holders across the country,” said Susan Freya Olive, an attorney in Durham, North Carolina, who represents Allen along with G. Jona Poe Jr. of Durham.

“When cert was granted, our client said the Constitution of the United States of America expressly empowers Congress to grant to copyright holders the exclusive right to their respective writings and discoveries,” she said. “We look forward to making our case to the Supreme Court as to why it was within Congress’ constitutional authority to hold states liable for their acts of copyright infringement.”

If the justices uphold the 4th Circuit’s ruling, creators of original expression would be left helpless in the face of copyright infringement by state actors, Allen argues in his brief filed with the Supreme Court.

As for the question of congressional power, Allen contends that Congress properly exercised its power under Section 5 of the 14th Amendment when it enacted the CRCA, “only after carefully compiling a record demonstrating that abrogation of state sovereign immunity is a congruent and proportional remedy for States’ pattern of continuing copyright abuses,” per his brief.

Olive noted the “wide swath of stakeholders” that filed amicus briefs in support of her client, including Ralph Oman, register of copyrights at the time the law was passed and who supervised the study that led to its passage.

Laura Brewer, spokesperson for the North Carolina Attorney General’s office, declined to comment on the case, citing the ongoing litigation.

But in its reply brief, the state explained that the CRCA is one of three laws passed in the early 1990s that purported to abrogate state sovereign immunity for intellectual property claims. The other two statutes—addressing patent and trademark law—were both struck down in 1999 as unconstitutional.

“Under this Court’s precedents, the Copyright Remedy Clarification Act is likewise unconstitutional,” the state wrote, and “the proper forum for Allen’s concerns is Congress. If state copyright infringement were truly a grave constitutional problem that warranted expansive remedial legislation, Congress could abrogate state sovereign immunity after compiling an adequate legislative record. The record here, however, cannot justify the Act’s sweeping abrogation.”

The state also has its share of amicus support, including a brief filed by a coalition of 31 states, including South Carolina and Virginia.

“A ruling for [Allen] would be an upheaval of this Court’s jurisprudence,” the states argue. “This Court’s recent state sovereign-immunity decisions reflect a renewed understanding of the interests at stake. Holding that States may be sued for monetary damages in federal court under the Copyright Remedy Clarification Act would be a significant step backward.”

A decision from the court is expected later this term.

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