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From the High Seas to the High Court

John Gilberston \ June 26, 2019

Shiver me timbers!  The Supreme Court has agreed to hear a copyright dispute arising, quite literally, from the depths of Davey Jones’ Locker.  The story begins with the discovery of Blackbeard’s pirate ship, Queen Anne’s Revenge, off the coast of North Carolina in 1996.  The famed vessel sank after running aground in the early 1700s, and had escaped detection for more than 250 years. Soon after the discovery, the state enacted a statute known as “Blackbeard’s Law,” which converted the salvage effort into a public record.  In addition to cannons, coins, and other “booty,” this record included photographs and video of the wreck taken by Frederick Allen, an underwater videographer.

As part of its tourism promotions, North Carolina, without permission, published some of Allen’s photos and videos.  Allen owns the copyrights associated with this footage, and subsequently brought suit against North Carolina in 2015 for copyright infringement under the Copyright Remedy Clarification Act (CRCA).  

At issue is whether Allen even has standing to sue.  States have sovereign immunity under the Eleventh Amendment, which gives broad protection to states and state officials from being sued in federal court, for anything.  The CRCA, however, was specifically designed to remove the Eleventh Amendment bar when the cause of action is copyright infringement. The effect is to give copyright holders legal standing to sue states in federal court, thereby narrowing the scope of the Eleventh Amendment.  The question, then, is whether this is constitutional.

Unfortunately for Allen, the CRCA has already been struck down as unconstitutional by several lower federal courts, on the grounds that Congress essentially amended the Constitution by limiting the Amendment in this way.  Amending the Constitution is of course permissible if the proper procedures are followed, but a mere act of Congress will not suffice. Without the CRCA, Allen’s claims were found to be barred by the Eleventh Amendment.

Allen petitioned the Supreme Court to hear his case, arguing that it should be the final arbiter of whether the law is constitutional, not the lower federal courts.  Allen notes that although the Department of Justice no longer defends the CRCA in court, the statute is still on the books.  He adds that “[t]his court generally grants review where, as here, a federal court refuses to enforce a federal statute on constitutional grounds.”  The Court agreed to take the case, but per its usual practice, did not explain why.

Looks like we’ll have to wait until the Court’s next term to find out which party has to walk the plank.



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