State Defends Its Video Piracy in Blackbeard Ship Case

Christina Burnham holds pirate-themed flags in front of the Supreme Court in support of her uncle, Frederick Allen, a filmmaker whose appeal in a copyright lawsuit over the use of his footage of Blackbeard’s shipwreck is being heard by the justices, in Washington Nov. 5, 2019. REUTERS/Andrew Chung

The justices of the Supreme Court seemed sympathetic to videographer Frederick Allen, whose attorney argued that North Carolina unfairly deprived him of his intellectual property rights by publishing without permission the images he made of the salvaging of a pirate ship that was owned by the pirate Blackbeard.

Blackbeard, also known as Edward Teach, was an English privateer and pirate who died in 1718. His 40-gun flagship, Queen Anne’s Revenge, conducted raids along the coasts of Virginia and the Carolinas. Coincidentally, English law, the forerunner of American law, first recognized copyrights in 1710, during the reign of Queen Anne. Blackbeard’s much-storied buried treasure—assuming it existed—has never been located, but the wreckage of the ship was discovered in 1996.

The Supreme Court was asked to consider whether a federal law that seems to allow copyright holders to sue states was constitutional in light of a longstanding legal doctrine that generally immunizes states from such liability in federal litigation. On the other hand, the U.S. Constitution contains the Intellectual Property Clause, which gives Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Allen claims the state ran afoul of the federal Copyright Remedy Clarification Act (CRCA) which exposes states, state bodies, and officials to copyright liability “in the same manner and to the same extent as any nongovernmental entity.”

“My clients have put in two decades of work, essentially, trying to be there ... when these images are excavated underwater, at great expense, at great risk, and this is all essentially my clients get out of it, the copyrighted images,” the petitioners’ lawyer, Derek L. Shaffer, told the court during oral arguments Nov. 5, in the case cited as Allen v. Cooper.

“Not once or twice, but repeatedly and systematically, [the state] was infringing those copyrights, was caught doing it, paid $15,000 under the terms of the settlement agreement, went back to doing it. Even after this complaint was filed, they continued to infringe the copyrights.”

After the infringements, the state brought in a statute in 2015 known as Blackbeard’s Law, which deemed photos, video footage, and other material documenting shipwrecks as forming part of the public record. Allen contends the law was enacted in bad faith.

A U.S. District Court rejected the state’s motion to dismiss Allen’s action, finding that the CRCA didn’t shield the state and individuals involved from liability. North Carolina appealed, telling the 4th Circuit Court of Appeals that the CRCA hadn’t validly repealed the state’s immunity from suit under the 11th Amendment. The circuit court sided with the state.

During oral arguments, Justice Sonia Sotomayor challenged Ryan Park, the deputy solicitor general of North Carolina.

“What do I do with the Blackbeard law? It is deeply troubling. It’s a state saying even if I’m infringing, you can’t get anything. That’s basically how I read that law.”

Park conceded it was “a strange law” but argued it was nevertheless valid.

Justice Samuel Alito told Shaffer that in a brief he had said that the CRCA “had 16 examples over the previous decade of reported state infringement in 13 states. ... Is that enough to identify a serious constitutional problem?”

Shaffer replied in the affirmative, saying states “are infringing without paying” copyright holders. “That is a fundamental intrusion.”

Justice Stephen Breyer speculated that states could go into the movie piracy business, “charging five dollars or something ... to run Rocky, Marvel, whatever, Spider-Man, and perhaps Groundhog Day, all right?”

“Several billion dollars flows into the treasury,” he said to Park. “Okay? Now, if you win, why won’t that happen?”

Park said the “hypothetical misunderstands, respectfully, the role of sovereign immunity in our constitutional system.”

Expanding on Breyer’s hypothetical example, Justice Brett Kavanaugh said in the future this conduct of “states ripping off copyright holders” could become “rampant.”

Justice Ruth Bader Ginsburg said, “States can hold copyrights. They can be copyright holders. And they can sue anybody in the world for infringement. There’s something unseemly about a state saying, yes, we can hold copyrights and we can hold infringers to account to us, but we can infringe to our heart’s content and be immune from any compensatory damages.”

West Virginia and 30 other states weighed in on behalf of North Carolina by filing a friend-of-the-court brief in the case.

“The Constitution is built on a strong default in favor of the sovereign immunity of the States,” the states argued. “Reversal would work a serious and unwarranted shift in the balance between state and federal power that is critical to our constitutional regime.”

“Holding that States may be sued for monetary damages in federal court under the Copyright Remedy Clarification Act (‘the Act’) would be a significant step backward ... that could open the floodgates to federal lawsuits seeking monetary damages against States even well outside the copyright context.”