Blog Post Provides Update on Legal Battle in Blackbeard's Pirate Ship Case

An August 10 blog post by Stephen Carlisle catches up with the continuing case of Cooper v. Allen, following the Supreme Court's 2020 decision that ruled the Eleventh Amendment barred copyright infringements against states under the Copyright Remedy Clarification Act of 1990. The blog post is titled "State Attempts to Sink Blackbeard Infringement Case by 'Deep Sixing' the Law They Passed to Claim the Copyrights." At issue in the case is the State of North Carolina's unauthorized use of copyrighted video footage created by Mr. Rick Allen of efforts to salvage the pirate Blackbeard's ship, Queen Anne's Revenge.

I first wrote about Cooper v. Allen in an October 2019 Perspectives from FSF Scholars, "States Have No Right to Infringe Copyrights: The Supreme Court Should Enforce the Copyright Remedy Clarification Act." But the Supreme Court saw things differently, concluding that the CRCA's blanket abrogation of state immunity was not proportional or congruent to any proven problem of copyright infringements by states that amounted to unconstitutional injuries. The court's decision left open the door to Congress passing a future statute that is more narrowly targeted to intentional and reckless infringements by states. Language in the court's decision suggested that intentional or at least reckless infringement could come within the reach of the Fourteenth Amendment's Due Process Clause.

Thus, in a July 2020 Perspectives from FSF Scholars, "Congress Should Stop States From Infringing Copyrights," I wrote that the "Congress should craft a statute that will abrogate the sovereign immunity of states from being sued in federal court when they intentionally or recklessly infringe copyrights." To date, no legislation has been introduced in Congress to address intentional and reckless copyright infringements by states. However, in August 2021, the U.S. Copyright Office released a policy study on "Copyright and State Sovereign Immunity." The study explored possible legal bases for addressing infringements by states that may remain for copyright owners following the decision in Cooper v. Allen, such as due process and takings claims. 

 

Despite Mr. Allen's loss on infringement claims against the State of North Carolina in Cooper v. Allen, his takings claims and other claims remain alive in U.S. District Court. Mr. Carlisle's blog post summarizes those claims and describes the "spend your opponent into the ground" litigation strategy that the North Carolina Attorney General and Department of Justice – seemingly aided by the North Carolina General Assembly – appear to be using against a copyright owner who was wrongly denied the exclusive right to use his property and financially harmed by that state. Read Mr. Carlisle's excellent blog post for more. And Godspeed to Mr. Allen in his pursuit of justice. 

Supreme Court Denies Petition in Case Involving State Takings of Copyrighted Property

On March 21, the Supreme Court denied a petition for certiorari in the case of Jim Olive Photography v. University of Houston System. The case involved important and interesting legal issues regarding judicial enforcement of the Fifth and Fourteenth Amendments' prohibitions against state government takings of copyrighted property without just compensation. Unfortunately, the court's denial of the petition means that those issues will have to wait for another time.  

In Allen v. Cooper (2020), the Supreme Court concluded that the Eleventh Amendment generally bars federal courts from hearing infringement claims against state governments. But the Eleventh Amendment does not bar federal courts from hearing claims against states for takings of private property without just compensation or for deprivations of due process. As explained in my December 2021 Perspectives from FSF Scholars, "States Should Not Take Intellectual Property Without Justice Compensation: The Constitution's Fifth and Fourteenth Amendments Protect Copyrights." 

In Jim Olive Photography, the petitioning copyright owner's taking claims were denied by the Texas Supreme Court. He sought an order by the U.S. Supreme Court to vacate that decision and have the lower court reconsider his taking claims in light of the high court's decision in Cedar Point Nursery v. Hassid (2021). In Hassid, the court determined that regulations requiring government access to private property constitute per se physical takings similar to an easement in property because they appropriate the "right to exclude." And the copyright owner in Jim Olive Photography made a well-founded argument a state's appropriation of a copyright owner's exclusive rights, either by making unauthorized reproductions of the work or by publicly displaying it, is analogous to a state's appropriation of a portion of a property owner's land or crops. 

 

The Supreme Court's denial of the petition in Jim Olive Photography is unfortunate for copyright owners whose works have been infringed by state government agencies. But I stand by the legal principles and reasoning about takings of copyrighted property that are set forth in my December 2021 Perspectives:

Copyrights are a type of property that are expressly recognized in the Constitution. This understanding of copyrights as property provides a principled basis for Takings Clause claims when states intentionally or recklessly appropriate exclusive rights in copyrighted property. Such claims also appear consonant with Supreme Court decisions that prohibit states from appropriating personal property and an owner's "right to exclude." The Court should extend its Takings Clause jurisprudence to include takings of copyrighted property. 

Copyright Office Releases Study on State Infringements and Sovereign Immunity

On August 31, the U.S. Copyright Office released its policy study on "Copyright and State Sovereign Immunity." The study was requested following the U.S. Supreme Court's 2020 decision in Allen v. Cooper, which held that the Eleventh Amendment barred liability for copyright infringements by states under the Copyright Remedy Clarification Act of 1990 (CRCA). My July 2020 Perspectives From FSF Scholars titled "Congress Should Stop States From Infringing Copyrights" was written in response to Allen v. Cooper.

The Copyright Office's study summarizes the record of copyright infringement actions brought against states since the CRCA, provides an account of other alleged copyright infringements by state agencies as well as state officials, and it explores other possible legal bases for addressing copyright infringements by states in light of the limitations imposed by Allen v. Cooper.

My August 20 blog post noted one post-Allen case decided by a U.S. District Court that appears to leave the door open to takings claims regarding alleged copyright infringement by a state. Expect to hear more from Free State Foundation Scholars in the near future on the Copyright Office's copyright and state sovereign immunity study as well as more on post-Allen court decisions involving alleged infringements by states.