‘Blackbeard’ Returns: U.S. Supreme Court Ruling Allows States to act as copyright pirates; vendors beware

A recent United States Supreme Court ruling involving a video about diving for sunken treasure that depicted the recovery of artifacts from Blackbeard’s 18th century pirated slave ship gives States the right to ignore copyright infringement claims against them.

In a unanimous ruling in favor of States’ rights SCOTUS said that a videographer who spent twenty years documenting the salvaging of Blackbeard’s ship off the coast of North Carolina cannot sue the state in federal court for using his videos without permission.

North Carolina successfully asserted a sovereign immunity defense that rendered the Federal statute limiting States’ immunity as to patents and copyright claims unconstitutional. The Court agreed that “Congress lacked authority to abrogate the States’ immunity from copyright infringement suits in the CRCA (Copyright Remedy Clarification Act of 1990).”

Sovereign immunity is a legal doctrine that states a sovereign or State cannot commit a legal wrong and is “immune from civil suit or criminal prosecution.”

                       “The lesson here [for IP creators and owners] is not to deliver any software, videos or photographs to a State government agency unless appropriate contracts addressing this issue have been duly executed.”

This decision is a huge victory for the States and a blow to IP creators and owners. Claiming immunity from copyright infringement lawsuits, unless otherwise specified in an agreement, profoundly affects software, music, design, books, films and other copyrighted content. It appears to also impact patented inventions.

Queen Anne’s Revenge

In 1997 researchers discovered the sunken remains of a French slave ship captured by the infamous pirate Blackbeard in 1717. He had renamed the ship ‘Queen Anne’s Revenge’. The vessel became the pirate’s flagship, with 40 cannons and 300 men. It sailed around the Caribbean and up the U.S. coast, but in 1718 ran aground a mile off Beaufort, N.C., and sank.

Capture of the Pirate Blackbeard by Jean Leon Gerome Ferris

Writing for himself and Justice Ginsburg, Justice Breyer’s opinion noted that he had long disagreed with the decisions barring individual lawsuits against state governments. “One might think that Walt Disney Pictures could sue a state (or anyone else) for hosting an unlicensed screening of the studio’s blockbuster film, Pirates of the Caribbean (or any of its many sequels.) Yet the court holds otherwise.”

The Take-Away

“The lesson here [for IP creators and owners] is not to deliver any software, videos or photographs to a State government agency unless appropriate contracts addressing this issue have been duly executed,” says New York IP attorney Ted Sabety. “If the code (or other content) is delivered without a contract in place, the vendor’s copyright in the code will not protect the vendor.”

HD Videos from videographer Rick Allen’s Nautilus Productions can be found here. Availability of licensed stock footage can be found here.

Wrote Justice Breyer: “To subject non-consenting States to private suits for copyright or patent infringement, says the Court, Congress must endeavor to pass a more ‘tailored statute’ than the one before us, relying not on the Intellectual Property Clause, but on §5 of the Fourteenth Amendment. Ante, at 16.

“Whether a future legislative effort along those lines will pass constitutional muster is anyone’s guess. But faced with the risk of unfairness to authors and inventors alike, perhaps Congress will venture into this great constitutional unknown.”

The Court’s 25-page decision can be found here.

Image source: prlog.org; usatoday.com

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