Hi, and welcome back to Legal Geek. This week, we preview a notable case that the Supreme Court granted certiorari to last week, specifically involving copyright law and a pirate ship. Ma'hoy!
In 1990, the U.S. copyright law was amended in a bill by Congress entitled the Copyright Remedy Clarification Act, or the "CRCA." This law has a provision that allows copyright owners to sue states for infringement, when any state of the union commits such infringement. That is precisely the case at hand, as a videographer Frederick Allen is trying to sue the state of North Carolina for copyright infringement over unauthorized use of his video footage of a pirate shipwreck which is known to have wrecked on the coast of that state.
However, there's just one big problem for Mr. Allen, and that's the Eleventh Amendment to the U.S. Constitution. The 11th Amendment grants states and state officials broad sovereign immunity from being sued in federal court. The CRCA aimed to create an exception to this broad immunity in the case of copyright infringement. That has not flown well in lower federal courts, which have consistently stricken down this law as unconstitutional since its passage in 1990. Indeed, the U.S. Department of Justice, which normally defends constitutionality of Congress's laws, no longer defends this statute in court.
Allen's case was similarly thrown out by the lower court and the Fourth Circuit court of appeal, yet in a surprise, the Supreme Court chose to hear this case for the next year's term. So the pirate ship case will sail into the port of the 9 justices next fall, taking direct aim at this conflict between the 11th Amendment and the CRCA. If the Supreme Court also deems this law unconstitutional, then that will officially be the final death blow for this 30-year old law.
If, on the other hand, the CRCA is deemed OK in spite of the 11th Amendment, then Allen will be able to proceed with his copyright infringement case against North Carolina. If that occurs, you can expect several other cases to also appear against states that have not complied with copyright laws and rights. It's an interesting gap in copyright protection which is only available in the federal setting, so this may be a rare case where sovereign immunity will not win the day.
The Bottom Line is: sometimes the most silly things like Pirate Ships come before the Supreme Court, this time in the guise of a constitutional question about copyright law. One hopes that as with superheroes and other relatively fun topics, the justices will take this opportunity to throw some levity into the oral arguments and the final written opinion, perhaps even by scheduling the argument on Talk Like a Pirate Day. OK, so that latter part won't happen, but we can hope for some fun when this case fires the cannons next fall.
POSTNOTE - Just an FYI, the Legal Geek will be appearing at Origins in Columbus in June and at GenCon in Indianapolis in August with educational seminars on IP law for game designers. Please come out and say hello if you'll be at those conventions!
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