Blackbeard’s ship, Queen Anne’s Revenge, may have sunk over 300 years ago, but the passage of three centuries isn’t stopping the vessel from causing coastal headaches. Last week, in Allen v. Cooper, the Supreme Court heard arguments from Frederick Allen, a researcher who obtained copyright protection of his documentation of the 1998 recovery of the legendary vessel. Allen argued that North Carolina’s designation of all documentary materials of shipwrecks to be public records was unconstitutional. North Carolina argued that the 11th Amendment provided immunity and that the Copyright Remedy Clarification Act (“CRCA”), which abrogates state immunity from copyright infringement suits, was unconstitutional. North Carolina originally settled with Allen in his 2013 copyright infringement suit, agreeing both to take down copyrighted materials from its websites and refrain from using the works without permission in the future. However, the state quickly broke its promise and passed the aforementioned law (known as “Blackbeard’s Law”), designating Allen’s work and other materials as freely available. As a result, the present suit commenced.

North Carolina’s major obstacle in this case is CRCA’s text, which states in relevant part that states and their officials “shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of a copyright owner.” In addition to the Fourth Circuit’s decision siding with North Carolina on CRCA’s unconstitutionality, North Carolina’s position is strengthened by the Supreme Court’s 5-4 decision in Florida Prepaid, which required evidence of widespread constitutional violations (e.g. rampant intellectual property infringement by the government) to justify Congressional legislation that waives state sovereign immunity with respect to patent infringement suits. With only sixteen instances of state infringement presented before the Court, there is little reason to believe that Allen will be successful if the Court decides to follow Florida Prepaid, which held eight instances of state patent infringement to be insufficient.

However, Allen is not without hope. Intuitively, it is difficult to imagine a copyright being an “exclusive” right if states are free to infringe (especially via targeted legislation) while maintaining the ability to obtain copyright protection. As the Justices noted during oral arguments, accepting North Carolina’s actions as lawful might open the door to more copyright infringement by states. Furthermore, the right to exclusivity is embedded in the intellectual property clause, thus making all sixteen instances of copyright infringement in this case more egregious than the eight instances of patent infringement in Florida Prepaid. This is especially true since copyright infringement requires “copying,” which involves more intent than patent infringement, which can be done negligently. Finally, the stare decisis argument for keeping Florida Prepaid is somewhat tenuous, as (1) the decision barely analyzed the intellectual property clause, and (2) the reliance interest is being used to justify copyright infringement.

State sovereign immunity is an undeniably important part of our federalist system. However, North Carolina did itself no favors by passing such an obviously targeted law, and it may have accidentally risked chipping away at broader protections for state immunity. There is a real possibility of the Court upholding the abrogation of state immunity from an entire class of lawsuits (copyright infringement) on what amounts to one questionable state law and a mere sixteen recorded cases of state infringement. Yet, the exact opposite result–allowing North Carolina to violate others’ copyright protections with surgical precision while maintaining its own–is equally unsavory. It remains to be seen if the Court has the appetite to find a narrow avenue to strike down North Carolina’s arbitrary law while leaving state sovereign immunity intact.

Tobias Ma

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