In 1717, the infamous pirate Blackbeard was entering Beaufort Inlet, on the coast of North Carolina, in his flagship, Queen Anne’s Revenge, when the ship ran aground and sank. Ironically, 300 years later, the pirate vessel would itself become the subject of piracy. In the 1990s, the wreck was discovered, and Frederick Allen documented the salvage efforts, registering his photos and videos with the U.S. Copyright Office. In 2013, North Carolina’s Department of Natural and Cultural Resources began using this media—without permission—on its website. When Allen complained, the state legislature passed a law that attempted to retroactively place his work in the public record.
In Allen v. Cooper, North Carolina is seeking sovereign immunity under the 11th Amendment.[i] In the 1990s, Congress attempted to limit that immunity with the Copyright Remedy Clarification Act, but the Constitutional authority on which the Act stands is unclear. In 1999, in Florida Prepaid v. College Savings Bank, the Court ruled that Article I did not give Congress the power to abrogate state’s sovereign immunity in cases of patent infringement[ii]—but in 2006, in Central Virginia Community College v. Katz, the Court seemed to undermine its previous ruling when it allowed Congress to abrogate immunity using its Article I power to regulate bankruptcies.[iii] Additionally, under the 14th Amendment, Congress can limit the 11th Amendment’s protection if states have been violating the Constitution, and before passage of the Act, the U.S. Copyright Office provided dozens of states infringing copyrights—which Congress has the explicit power to protect under the Constitution. Predictably, North Carolina claims the Act is not a valid exercise of Congressional power under Article I or the 14th Amendment, and Allen disagrees, adding that without the Act, copyright holders will have no legal recourse if states decide to take their copyrighted works.
Meanwhile, in another case being heard by the Court on Monday, Georgia v. Public.Resource.Org Inc., the state of Georgia is arguing that it has a valid copyright in the official annotated version of its state code, and that Carl Malamud, operator of Public.Resource.Org, has infringed by posting the code for free online.[iv] Malamud argues that, as a government edict, the annotated code is not protectable. According to him, “It has always been a legal tenet that the law must be available to all of the people. It is our contention that the entire Official Code of Georgia Annotated is something that is for the public.”[v] But Georgia, attempting to protect a lucrative contract with publisher LexisNexis, disagrees, pointing out that the code (without annotations) is available online and that the annotated version is freely available in libraries.
These two cases illustrate the awkward positioning of states under federal copyright law, a position which stems in part from the fact that federal government works are not copyrightable under the Copyright Act, but there is no such explicit exception for state works. At least one Justice pointed out this hypocrisy. At oral arguments for Allen v. Cooper, Justice Ginsburg commented, “States can hold copyrights. They can be copyright holders. And they can sue anybody in the world for infringement. There is something unseemly about a state saying, yes, we can hold copyrights and we can hold infringers to account to us, but we can infringe to our heart’s content and be immune from any compensatory damages.”[vi]
[i] No. 18-877.
[ii] 527 U.S. 627.
[iii] 546 U.S. 356.
[iv] No. 18-1150.
[v] Mark Walsh, “Open Access: SCOTUS will consider whether publishers can copyright annotated state codes,” ABA Journal (Nov. 27, 2019). http://www.abajournal.com/web/article/open-access-court-considers-whether-publishers-can-copyright-annotated-state-codes
[vi] Eriq Gardner, “Supreme Court Wrestles With Consequences for Piracy by State Governments,” The Hollywood Reporter (November 5, 2019). https://www.hollywoodreporter.com/thr-esq/supreme-court-wrestles-consequences-piracy-by-state-governments-1252437