Land Ahoy! Does Blackbeard Signal the End of State Immunity for Copyright Infringement? by Johannes Munter

Although the age of actual pirates is long gone, a case involving Blackbeard highlights copyright infringement by states, acting with apparent impunity, and the harmful impact it can have on the creative community.

Typically, private citizens are barred from suing a state, thanks to the grant of sovereign immunity provided to the states under the Eleventh Amendment. But from time to time, in the interest of justice, Congress will abrogate sovereign immunity in order to guarantee the protections provided by the Fourteenth Amendment. That’s exactly what happened in 1990 when Congress adopted the Copyright Remedy Clarification Act (CRCA) after continuous copyright violations by the states over the years deprived individual creators and the creative community as a whole of substantial income. Congress acknowledged that the creative community should have the opportunity to receive just remuneration when their works are used by others and that they should have the ability to seek redress in court when their rights are being infringed – regardless of whether the infringement is conducted by a state government or a private entity. However, since the adoption of the CRCA, the Fifth Circuit and several lower courts have held that it did not effectively abrogate state sovereign immunity, and that individuals were still precluded from suing states for copyright infringement.

In Allen v. Cooper, Judge Boyle of the United States District Court for the Eastern District of North Carolina found that photographer and videographer Frederick Allen was entitled to sue the State of North Carolina for allegedly infringing his copyrights. Allen, and his production company Nautilus Productions, have been the exclusive photographers of the shipwreck of Queen Anne’s Revenge – once captained by the infamous pirate Blackbeard – since 1998, shortly after the wreck’s discovery. In 2013, Allen found out that the State had allegedly been using his videos online without his consent. While the parties entered into a settlement agreement, requiring the State to compensate Allen for the use of the copyrighted material prior to the settlement date, Allen found out that the State had continued to use Allen’s copyrighted works after the settlement agreement without compensation both online and in print. In addition, the State government passed a law making all photographs and video material of shipwrecks in custody of North Carolina public record and available for use without limitations. As a result, Allen filed this suit for declaratory judgment, arguing that the statute violates the Takings and Due Process clauses of the Constitution. While Judge Boyle found for Allen, the State has now appealed to the Circuit Court.

Looking at the legislative history and Supreme Court precedent, it is clear that the CRCA validly abrogates the States’ sovereign immunity in copyright infringement cases. When deciding whether congressional abrogation of sovereign immunity validly enforces the guarantees of the Fourteenth Amendment, the Supreme Court has indicated that an important consideration is whether there is evidence of a pattern of constitutional violations by states in the area under consideration. Here, there clearly was, and the states’ conduct following CRCA’s enactment confirms that the violations continue and that the CRCA remains necessary to safeguard copyright owners’ rights. In the wake of various judicial decisions finding the CRCA unconstitutional, States have infringed copyrights and have cited the belief that they are immune from damages suits as a basis for denying compensation for their prior unauthorized uses of copyrighted works. For example, the Software & Information Industry Association provided information to the Senate in 2001 and 2002, indicating that it had identified 77 matters involving possible infringement of copyrighted software by state entities and that this number was likely deflated as it was based solely on filed lawsuits or reported court decisions. Similarly, Getty Images has found at least 16 instances of copyright infringement by state entities in the last two years alone. Congress properly and appropriately tailored the CRCA to remedy this kind of unjustified deprivation of vital income to individual creators and promote respect for copyright by eliminating the artificial separation between state and private infringers.

For the reasons discussed above, on Friday, the Copyright Alliance filed an amicus brief asking the United States Court of Appeals for the Fourth Circuit to affirm the lower court’s important decision and make sure that individual creators get fairly compensated for their hard work, no matter the identity of the infringer. You can read the amicus brief here.

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