If the Supreme Court agrees to hear Allen v. Cooper, copyright owners and constitutional scholars will both be watching closely. The practical matter for copyright owners is whether a U.S. State, or agents of a State, may freely use copyrighted works without permission and remain immune from claims for infringement. As of now, the Fourth Circuit Court of Appeals contends that a State entity (e.g. a university) may use or make available an author’s music, photography, film clips, etc. without compensation or permission, and the rightsholder has no remedy whatsoever. First, some background as condensed as I can make it …

June 10, 1718, the pirate Edward Thatch a.k.a. “Blackbeard” grounds his flagship Queen Anne’s Revenge off the coast of North Carolina at what is today called the Beaufort Inlet. Fast-forward past the Revolution to the tenuous founding period when the newly-independent States separately debate ratification of the Constitution.

For instance, July 1788, nearly 300 delegates from the counties of North Carolina gather for several days in Fayetteville and devote more than two of those days debating Article III and the fears that the the federal judiciary will preempt the authority of state courts. September 17, 1789, the U.S. Constitution is ratified including, of course, Article I, Section 8, Clause 8, granting Congress the power to write federally uniform IP laws, and the first Copyright Act is passed in May of 1790.

But …

In 1793, anti-Federalist fears are realized in Chisolm v. Georgia, when the estate of Alexander Chisolm of South Carolina successfully sues the State of Georgia in the U.S. Supreme Court for monies owed for supplies provided during the war for independence. State obligations for the war debts are already a heated issue, and now a citizen of one State has sued the government of another State in the brand new federal court system, thereby vitiating the State’s authority over its own courts. In response, we get the Eleventh Amendment on February 7, 1795, establishing the doctrine known as state sovereign immunity, to wit …

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

As an interesting side note, North Carolina Federalist, James Iredell, serving as Supreme Court Justice was the one dissent in Chisolm; and in the aforementioned 1788 debate in Fayetteville had declared, “The propriety of having a Supreme Court in every government must be obvious to every man of reflection. There can be no other way of securing the administration of justice uniformly in the several states. There might be, otherwise, as many different adjudications on the same subject as there are states.”

Fast way-forward to November 1990. Congress passes the Copyright Remedy Clarification Act (CRCA) to affirm that, indeed, States, instrumentalities of States, and officers and employees of States acting in their official capacity, are subject to suit in Federal court by any person for infringement of copyright…

Then …

On November 21, 1996, an exploration company called Intersal, Inc. locates the wreck of Blackbeard’s Queen Anne’s Revenge, and the State of North Carolina engages Rick Allen’s Nautilus Productions to produce documentary motion picture material of the wreck, its recovery, etc. At some point, a dispute arises between Nautilus and the State over certain uses of the footage, and the State settles the claims for a fee of $15,000. But subsequent to that settlement, in 2015, North Carolina passes a remarkably narrow law “requiring that all recordings and other documentary evidence of a derelict vessel or shipwreck in the custody of any agency of the North Carolina government be a public record,” to quote Hugh Stephens from his excellent coverage of this case. This law is colloquially referred to as “Blackbeard’s Law.”

Next …

North Carolina resumes infringing uses of the documentary footage, and Rick Allen files suit. The District Court finds for the plaintiff, but on appeal, the Fourth Circuit reverses, holding that the 1990 CRCA is unconstitutional, finding that state sovereign immunity means that no copyright owner may hold any State (or its agents) liable for copyright infringement.

P.S. That this particular case happens to involve a literal pirate is almost as nerdishly satisfying as the fact that the name of Blackbeard’s ship Queen Anne’s Revenge shares the eponym with what is typically considered the first authorial copyright law, England’s Statue of Queen Anne of 1710.

Copyright Owners Should Be Concerned

Copyright infringement by State actors is an ongoing and growing concern, especially in a time when university librarians et al seem too eager to make everything available via the internet. Although the Fourth Circuit holding is consistent with precedent rulings, an amicus brief filed in this case argues that the Supreme Court should grant cert in Allen, in part because those precedent rulings are deeply flawed.

“If the Fourth Circuit’s decision stands, there will be few (if any) remedies available to compensate authors for their losses. This is not what Congress intended,” states the brief written by David Nimmer* in collaboration with Professor Ernest Young and book author Michael Bynum. Bynum is an exemplary victim of the growing State infringement problem. After he provided an advance-copy of a new book to the Athletic Department of Texas A&M for the purpose of fact-checking, the university instead made the work available on the internet and claimed sovereign immunity in its defense.

The Nimmer brief is excellent reading for any copyright/constitutional law geeks out there who want an overview of the various components related to this case, which I cannot adequately summarize here. But one point the brief makes that may strike many readers as especially compelling is the argument that, at the nation’s founding, the Framers recognized the necessity for a uniform, federal copyright law concurrent with the need to protect the individual right of free speech. And because there is evidence in both the record of the founding period, and in subsequent caselaw, that copyright is meant to be an “engine of free expression,” the Nimmer brief argues quite rationally …

“The Framers could not have intended for States to retain immunity against claims for copyright infringement, as such immunity deters the creation of artistic expression and allows States to interfere with the author’s speech, including how he wishes to publish and use his work.”

This is an aspect of copyright that many casual critics often overlook: that by forcing an author to make work available in a manner anathema to her intended expression—including her right to express nothing at all—the use may abridge her speech right. When that kind of use is made by a citizen or private entity, the First Amendment is not implicated; but when such a use is made by a State actor, the First Amendment is absolutely implicated. This is just one of several reasons why it is nonsensical to conclude that the Eleventh Amendment could ever have been intended to prevent an individual citizen from exercising a constitutionally-protected right when that right is infringed by a State actor. As the Nimmer brief states quite succinctly, “Sovereign immunity should not be a license to steal.”

Also see Nautilus Productions’s own blog post on this case.

* David Nimmer is the co-writer, with Melville Nimmer, of the authoritative treatise Nimmer on Copyright.

© 2019 – 2020, David Newhoff. All rights reserved.

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