A New Age of Digital Piracy

On Monday the United States Supreme Court addressed a case of piracy about pirates. In a unanimous decision in Allen v. Cooper, the Supreme Court ruled that states have sovereign immunity against copyright infringement claims, based on both Court precedent and the language of the Copyright Remedy Clarification Act of 1990 (CRCA).

The case centered on a videographer’s claims against the state of North Carolina. During salvage operations on the shipwreck of Blackbeard’s Queen Anne’s Revenge that lasted more than a decade, Frederick Allen recorded videos and photographs of the efforts, all of which he registered with the Copyright Office. When North Carolina published some of his videos and photos online, Allen sued for copyright infringement. The parties settled, but North Carolina then passed a law putting videos and photos of shipwrecks in the state’s custody into the public record. This lawsuit followed.

The Court somewhat begrudgingly ruled in favor of North Carolina – noting that precedent, “all but prewrote our decision today”. The court went so far as to create a road map for Congress to enact a statute that would correct this incongruous result. Justice Elena Kagan noted that this kind of “tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice.” Allen was not happy with the Court’s decision. “The state of North Carolina routinely and vigorously enforces its own copyrights,” he said, “yet simultaneously hides behind sovereign immunity when it violates the intellectual property rights of its own citizens.”

It remains to be seen if states will change their behavior based on Monday’s ruling. The decision might save states from copyright infringement penalties, but it might also cost politicians votes and send them sailing.