The Supreme Court of the United States has held that the state government is free to infringe copyrights without fear of retribution. In Allen v. Cooper, the Supreme Court decided whether the state of North Carolina could be held liable under the Copyright Act for infringing filmmaker Frederick Allen’s copyright relating to Queen Anne’s Revenge. If that name sounds familiar, it’s probably because it is, in fact, the flagship of the infamous pirate Blackbeard.
The facts giving rise to this dispute go back to the 1990s. Well, to be clear, the facts giving rise to the dispute go back to 1717 when Blackbeard was using Queen Anne’s Revenge to carry out his plunderous activities. In any event, in the 1990s, a research firm located the shipwreck and hired Frederick Allen to film their recovery efforts. During this process, Allen’s company recorded video and took photographs, which were registered with the United States Copyright Office.
Then, seven years ago, the North Carolina Department of Natural and Cultural Resources posted several of Allen’s images of Queen Anne’s Revenge, resulting in a dispute. The parties reached an agreement whereby Allen was paid $15,000 for the infringement, and North Carolina took down the photos. However, shortly thereafter, the Department of Natural and Cultural Resources posted five videos and another photograph, all of which were owned by Allen. As a result, Allen filed suit against North Carolina.
In response to the copyright suit, North Carolina claimed sovereign immunity under the 11th Amendment to the United States Constitution. Although Congress can abrogate such immunity, its ability to do so is limited. North Carolina successfully defeated Allen’s claim in the trial court, and the decision was upheld by the Fourth Circuit Court of Appeals.
After suffering a loss at the Fourth Circuit, Allen turned to the U.S. Supreme Court, arguing that Central Virginia Community College v. Katz permitted Congress to abrogate state sovereign immunity in certain instances pursuant to its Article I authority. At oral argument, the Justices seemed reluctant to overturn a case known as Florida Prepaid v. College Savings Bank, which previously held that a state could not be held responsible for patent infringement pursuant to its sovereign immunity, but the Justices were also skeptical of North Carolina’s position.
After taking the matter under submission, the Court ruled in favor of the State of North Carolina, with Justice Elena Kagan writing for a unanimous court. In short, Justice Kagan wrote that the matter is controlled by Florida Prepaid v. College Savings Bank, and that Katz was an example of “bankruptcy exceptionalism,” which does not apply in the intellectual property context. However, in closing, Justice Kagan hinted that future abrogation attempts may be more fruitful. Specifically, Justice Kagan stated that, “Congress likely did not appreciate the importance of linking the scope of its abrogation to the redress or prevention of unconstitutional injuries — and of creating a legislative record to back up that connection.”
Justice Kagan concluded her opinion in a witty manner, stating “But going forward, Congress will know those rules. And under them, if it detects violations of due process, then it may enact a proportionate response. That kind of tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice.” It will be interesting to see how Congress responds to this ruling and invitation to prevent future intellectual property theft by the states, if it responds at all.