Pirates Live On in the Form of Sovereign States By Lisel Ferguson
C
enturies ago, pirates sailed our seas, pillaged villages, and stole jewels and ships. Pirates still exist today in the form of intellectual property thieves. This is a story of pirates then and now. In 1717, Edward Teach — better known as Black Beard — stole a French slave ship he renamed Queen Anne’s Revenge. He and his crew of some 300 sailed and pillaged the West Indies for a year before their luck ran out. Queen Anne’s Revenge ran ashore off the coast of Beaufort, North Carolina, where it rested under the sea, undisturbed for almost 300 years. It was discovered by a salvage company named Intersal, Inc. in 1996. Given the ship was in North Carolina’s waters, the state was the proud owner of the shipwreck. So North Carolina contracted with Intersal to conduct recovery operations. Intersal hired a videographer, Frederick Allen, to document the recovery. Allen recorded videos and took photographs for over a decade and registered copyrights in all of his works. North Carolina uploaded some of Allen’s videos to its website, and after Allen alleged copyright infringement, the parties settled for $15,000.
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SAN DIEGO LAWYER
| May/June 2020
However, North Carolina did not learn from its first piracy, posting five of Allen’s videos online as well as a photo in a newsletter. Allen again sued North Carolina for copyright infringement. A heated battle over this copyright piracy ensued. The case was filed in the Federal District Court and North Carolina moved to dismiss on the ground of sovereign immunity. Allen responded that an exception to the rule applied because Congress had abrogated States’ sovereign immunity when it comes to copyright infringement by enacting the Copyright Remedy Clarification Act of 1990 (CRCA). This act provides that a State “shall not be immune, under the 11th Amendment [or] any other doctrine of sovereign immunity, from suit in Federal court” for copyright infringement. 17 U.S.C. §511(a). The Act further specifies the State will be liable, and subject to remedies, “in the same manner and to the same extent as a private party." §501(a). North Carolina argued that pursuant to Florida Prepaid and other precedent, Congress was precluded from using its Article 1 powers to take away a State’s sovereign immunity (Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999)).