Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Saturday, October 19, 2019

Blackbeard, Allen v. Cooper, and Research via Public Depositories

    This term, SCOTUS will hear a sovereign immunity case involving Blackbeard’s sunken pirate ship.  In Allen v. Cooper, 18-877, the Court will address whether Congress validly abrogated state sovereign immunity in the 1990 Copyright Remedy Clarification Act (CRCA) by providing remedies for copyright holders when states infringe their federal copyrights. 

    Why does this matter to appellate advocacy, aside from the obvious fun of saying “Aaarrr!” when discussing an Eleventh Amendment case?  The case could impact the scope of free access researchers and appellate practitioners have to online materials.  In fact, while the case raises deep concerns for intellectual property creators, it also shows the increasing push by States to make images and documents available to the public at libraries and universities, and to preserve historic materials digitally.

    In 1718, Blackbeard’s Queen Anne’s Revenge ran aground a mile off the coast of what is now called Beaufort, North Carolina.  Legend says her captain and crew immediately transferred all treasure to smaller ships, and the Revenge remained underwater for over 200 years.  According to the Fourth Circuit’s opinion in Allen v. Cooper, 895 F.3d 337, 343 (4th Cir. 2018), in 1996, a private research and salvage firm operating under a permit issued by North Carolina discovered the wreck of the Revenge.  The researcher hired Petitioner, Frederick Allen, to document the shipwreck.  Id.  Allen obtained the rights to create video footage and photographs of the Revenge with another permit issued by North Carolina, and Allen registered his work over the next 13 years with the U.S. Copyright Office.  Id. at 342, 344.

    At some point, North Carolina posted pieces of Allen’s copyrighted works on State websites and in a State publication.  The State and Allen settled copyright claims from these postings, and the State agreed not to use Allen’s commercial copyrighted material in the future.  Id. at 344-45.  Nonetheless, the State soon published more of Allen’s Revenge video and images online, and then the North Carolina Legislature passed “Blackbeard’s Law,” which converts many of Allen’s images to the public record.  See id. at 342; N.C. Gen. Stat. § 121–25(b) (2015) (providing that photographs and video recordings of shipwrecks in the custody of North Carolina are public records); Amy Howe, Justices grant three new cases, SCOTUSblog (Jun. 3, 2019, 12:16 PM), https://www.scotusblog.com/2019/06/justices-grant-three-new-cases/.

    Allen sued North Carolina for copyright infringement and for a declaration that Blackbeard’s Law is unconstitutional.  The state moved to dismiss on the grounds of sovereign immunity, and Allen argued the CRCA abrogated North Carolina’s immunity.  The district court ruled for Allen, but the Fourth Circuit reversed, holding Congress acted improperly in enacting the CRCA.  Allen, 895 F.3d at 342-43, 350-53.  The Supreme Court granted cert, and will hear the case on November 5.  https://www.scotusblog.com/case-files/cases/allen-v-cooper/.

    Over twenty amici have filed briefs.  Amici in support of Allen make excellent arguments in favor of strengthening IP protection and maintaining the remedies provided in the CRCA.  For example, Oracle, the Software & Information Industry Association, and a group of prominent law scholars have each filed briefs contending Congress properly protected IP rights and innovation in the CRCA.  Oracle ACB, 2019 WL 3828598; SIIA ACB, 2019 WL 3814393, and Scholars ACB, 2019 WL 3828597.  These briefs stress the need to protect inventors and innovators from state action and potential wholesale public adoption of their copyrighted property.

    On the other hand, amici in favor of North Carolina argue copyright holders have remedies aside from the CRCA.  The also claim abrogating immunity will limit the public’s access to documents at public university and government research libraries.  The American Library Association and others stress that public archivists need protection for their large-scale, costly digitization projects to create open access and to save documents of historical significance.  ALA ACB, 2019 WL 4858292.  Similarly, a group of public universities note they are acting in the public interest to promote “education, research and community engagement” when digitizing documents and already carefully respect copyrights.  Public Universities ACB, 2019 WL 4748384.

    Whatever the outcome of these arguments, our appellate community should keep an eye on this case.  Not only does it offer pirate fun, but it presents serious issues of property rights and public access to research materials.

https://lawprofessors.typepad.com/appellate_advocacy/2019/10/blackbeard-allen-v-cooper-and-research-via-public-depositories.html

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