“One man’s legally sanctioned privateer is another man’s pirate.”          

[James Wadsworth, Global Piracy: A Documentary History of Seaborne Banditry (2019), at p. 8]

We live in a time of contradictions and confusion, and today we aim to explore how some such tensions have manifested themselves in the area of intellectual property law.

On the one hand, we have a national and international commitment to combating infringement, especially where that piracy is sponsored by “state” actors.  In fact, the American Bar Association has recognized that “intellectual property is critical to the U.S. economy,” but “is subject to a tremendous level of theft… and the fact that the Internet makes IP theft easier.”  Because the “[i]nternet also serves as a medium for organized crime, competitors, activist groups, and state-sponsored actors to steal intellectual property,” efforts to protect IP go beyond civil remedies and criminal penalties to diplomatic necessities and national security requirements.  Id.   In fact, annually, the U.S. Trade Representative (USTR) publishes a Special 301 Report on global enforcement of IP rights. The 2020 Special 301 Report listed 23 countries on the “watch list” and 10 countries on the “priority watch list” for IP rights violations. As the ABA has noted in the past, the “U.S. government takes bilateral actions with countries on these lists to improve foreign protection of U.S. intellectual property,” especially against state-sponsored coves and other notorious havens for IP counterfeiters and pirates.

But, at the same time that battles are being fought against foreign state sponsors of infringement, the United States Supreme Court held March 23, 2020, in Allen v. Cooper, that federal courts provide no sanctuary or succor where a copyright holder is victimized by a U.S. state itself, as opposed to the mercenaries serving a foreign one.   Indeed, in so holding, the Supreme Court, with a “simple nod and wink…[,] turn[ed] a pirate into a privateer overnight,” even though North Carolina’s “behavior, victims, tools, purpose and motivations remain[ed]  utterly unchanged,” (Wadsworth, supra, (2019), at p. 10), and consistent with those infringers everywhere.  Whether the U.S. Congress will take steps to eliminate that contradiction, and protect intellectual property owners from privateering U.S. states, remains to be seen, though one may find some encouragement from the fact that the United States Copyright Office is itself eliciting support for statutory changes through its State Sovereign Immunity Study portal.  Though these waters are hardly uncharted, they are murky nonetheless.  So let’s set sail.

As our first port, we stop at a familiar law-enforcement atoll, the website of the Federal Bureau of Investigation.  There, the United States government exhibits its desire to combat state sponsored piracy quite clearly:

Intellectual property theft involves robbing people or companies of their ideas, inventions, and creative expressions—known as “intellectual property”—which can include everything from trade secrets and proprietary products and parts to movies, music, and software….

Preventing intellectual property theft is a priority of the FBI’s criminal investigative program. … Key to the program’s success is linking the considerable resources and efforts of the private sector with law enforcement partners on local, state, federal, and international levels.

Also new in our approach to intellectual property theft is an enhanced relationship between our criminal and counterintelligence personnel when working theft of trade secrets cases. A trade secrets case worked under the counterintelligence program—which occurs when the involvement of state-sponsored actors is suspected—will be referred to a criminal squad if no state sponsorship is found. And when criminal investigators begin to suspect the involvement of a state sponsor, the case will be referred to the counterintelligence squad. The Bureau’s goal is to contain and/or even prevent the theft as quickly as possible, no matter who’s behind it….

To accomplish this goal, the [National Intellectual Property Rights Coordination Center (NIPRCC)] brings together multiple federal agencies—along with Interpol, Europol and the governments of Canada and Mexico—in a task force setting.

[FBI, What We Investigate: Intellectual Property/Privacy]

The distance from FBI headquarters to the US Supreme Court is 1.2 miles, hardly be a difficult distance on the open sea.  But Washington DC traffic and a bit of legal fog obscures connections between those two places. Where the FBI’s expresses a desire to “prevent the theft as quickly as possible, no matter who’s behind it,” the Supreme Court’s said in Allen (at 140 S.Ct. at 1006) that documented infringements, being small in number, by US states, was “not, to put the matter charitably, the stuff” on which one could justify sustaining the Copyright Remedy Clarification Act of 1990 (CRCA), an act allowing states to be sued in federal court.  Understanding Allen in more detail may explain, but should not excuse, such haze.

Allen is a case not only about copyright piracy, but actual piracy.  “In 1717, the pirate Edward Teach, better known as Blackbeard, captured a French slave ship in the West Indies and renamed her Queen Anne’s Revenge. The vessel became his flagship. Carrying some 40 cannons and 300 men, the Revenge took many prizes as she sailed around the Caribbean and up the North American coast. But her reign over those seas was short-lived. In 1718, the ship ran aground on a sandbar a mile off Beaufort, North Carolina. Blackbeard and most of his crew escaped without harm. Not so the Revenge. She sank beneath the waters, where she lay undisturbed for nearly 300 years.” Allen (at 140 S.Ct. at 999).  As the Supreme Court went on to note, “In 1996, a marine salvage company named Intersal, Inc., discovered the shipwreck. Under federal and state law, the wreck belongs to North Carolina. See 102 Stat. 433, 43 U.S.C. § 2105(c); N.C. Gen. Stat. Ann. § 121-22 (2019). But the State contracted with Intersal to take charge of the recovery activities. Intersal in turn retained petitioner Frederick Allen, a local videographer, to document the operation. For over a decade, Allen created videos and photos of divers’ efforts to salvage the Revenge‘s guns, anchors, and other remains. He registered copyrights in all those works.” Id.  Then meshing the piracy metaphor fully, the Court stated that “This suit arises from North Carolina’s publication of some of Allen’s videos and photos. Allen first protested in 2013 that the State was infringing his copyrights by uploading his work to its website without permission. To address that allegation, North Carolina agreed to a settlement paying Allen $15,000 and laying out the parties’ respective rights to the materials. But Allen and the State soon found themselves embroiled in another dispute. Allen complained that North Carolina had impermissibly posted five of his videos online and used one of his photos in a newsletter. When the State declined to admit wrongdoing, Allen filed this action in Federal District Court. It charges the State with copyright infringement (call it a modern form of piracy) and seeks money damages.” Id.

Allen, however, quickly switches course from a copyright case to a constitutional one because “North Carolina moved to dismiss the suit on the ground of sovereign immunity. It invoked the general rule that federal courts cannot hear suits brought by individuals against nonconsenting States,” based on the 11th Amendment to the United States Constitution. Id.  “But Allen responded that an exception to the rule applied because Congress had abrogated the States’ sovereign immunity from suits like his. See Plaintiffs’ Response, Doc. 57, p. 7. The [CRCA] provides that a State ‘shall not be immune, under the Eleventh Amendment [or] any other doctrine of sovereign immunity, from suit in Federal court’ for copyright infringement. 17 U.S.C. § 511(a).” Id. The Supreme Court, ultimately, sided with North Carolina.

According to the Court, the CRCA did include “clear enough language to abrogate the States’ immunity from copyright infringement suits.” Id. at 1001.  But the Court also concluded a question remained as to “whether Congress had authority to take that step” of removing states’ immunity from suit in federal court,  and what conditions or limitations needed to be present to allow for such a step. Id.  Finding that previous rulings in the patent context virtually required the decision precluding this copyright suit against North Carolina, the Supreme Court gave short shrift to evidence of the few state-sponsored infringements in the record or the likelihood of future instances of infringement, relying on statements like “’They are all respectful of the copyright law’ and ‘will continue to respect the law’; what State, after all, would ‘want[] to get a reputation as a copyright pirate?’ [Hearings on H. R. 1131 before the Subcommittee on Courts, Intellectual Property, and the Administration of Justice, 101st Cong., 1st Sess., 53 (1989) (House Hearings),] at 8. The bill’s House and Senate sponsors got the point. The former admitted that ‘there have not been any significant number” of copyright violations by States. Id., at 48 (Rep. Kastenmeier). And the latter conceded he could not currently see ‘a big problem.’” Allen, 140 S.Ct. at 1006.

But relying on state conduct during the time period when the thought they could be sued in federal court for copyright infringement under the CRCA as a predictor for how the states will act when they cannot be so sued makes little sense.  It makes even less sense when one realizes that a U.S. state depriving any one citizen of the privileges and immunities attendant to the copyright rights others enjoy in their works, or depriving such citizen without due process of some of the very property that such a federal copyright registration represents, seems inherently constitutionally suspect under the 14th Amendment.  That the Supreme Court seems to suggest a quantitative, group justification is necessary to protect a qualitative personal interests just misses the point, where even a cramped reading of the privileges and immunities clause of 14th Amendment recognizes the constitutional protections afforded rights—like copyright rights—“placed under the special care of the Federal government,” and has recognized them for almost 150 years. See Slaughterhouse Cases, 83 U.S. 36, 78 (1872).

The Court did go on to say that that ruling “need not prevent Congress from passing a valid copyright abrogation law in the future.” Id. at 1007.  To do so, the Court suggested that Congress should understand “the importance of linking the scope of its abrogation to the redress or prevention of unconstitutional injuries—and of creating a legislative record to back up that connection.” Id.  The problem with the course that the Supreme Court sets, however, is that it is perhaps a cruise to nowhere.

The Court suggests that removing immunity to federal copyright suit requires some recklessness or intentionality aspect. Id. at 1006-07.  But that makes little sense since “in the final analysis Defendants’ intent is not relevant to a determination whether infringements occurred” in a copyright case, Cambridge University Press v. Becker, 863 F. Supp. 2d 1190, 1363 (N.D. Ga. 2012)(finding against Georgia State University after trial, notwithstanding 11th Amendment), reversed on non-11th Amendment grounds, 769 F.3d 1232 (11th Cir. 2012).  The same is true in the patent infringement context. See Carrier Corp. v. Goodman Global Inc., 162 F.Supp.3d 345, 367 (D.Del. 2016).  So it appears that the Supreme Court is suggesting the adding of an element to a claim against a state actor that does not exist under copyright law.  This is especially troubling because deprivation of property and deprivation of rights cases generally have not been limited to intentional deprivation and have applied to where “a wrong was negligently as opposed to intentionally committed.”  See Parratt v. Taylor, 451 U.S. 527, 535 (1981).

While copyright holders with concerns about state actors would do well to try to get appropriate federal legislation passed, they should not ignore the possibilities that already exist for calming the copyright seas.  As the Court noted in Parratt, Title 42, “§ 1983 affords a ‘civil remedy’ for deprivations of federally protected rights caused by persons acting under color of state law without any express requirement of a particular state of mind. Accordingly, in any § 1983 action the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. See Parratt, 451 U.S. at 535.  It would seem that such claims requirements can be met, and that could mean seeking damages relief, perhaps in a section 1983 case skimming around 11th Amendment concerns (as one commentator notes), under other damages theories, or for injunctive relief under Ex Parte Young, 209 U.S. 123 (1908) and its progeny, as another commentator noted post-AllenSee also Cambridge University Press v. Becker, 863 F. Supp. 2d 1190, 1363 (N.D. Ga. 2012).  This course is not without is challenges.  There are qualified immunity shoals to be avoided, as one commentator recently mentioned.   One must also take care not to run aground on the exclusive jurisdiction that federal courts have over copyright claims or on the copyright preemption grounds cited by many courts.

Avast ye, pre-emption seemingly raises problems in pursuing copyrights claims in state courts or section 1983 claims in federal courts to avoid 11th Amendment issues.  First,   Franchise Tax Bd v. Hyatt, decided by the Supreme Court in 2019, “embeds interstate sovereign immunity within the constitutional design, 139 S.Ct. 1485, 1497 (2019), so state’s could resist claims in sister state’s courts even if they were not pre-empted, though they probably could not resist suits in their own courts, assuming one otherwise complied with state law notice and filing requirements.  Second, pre-emption would remain an issue, whether one was in state or federal court.  In fact, Molinelli-Freytes v. University of Puerto Rico, 727 F.Supp.2d 60, 65-66 (D.P.R. 2020), held that the Copyright Act pre-empted section 1983 claims related to copyright infringement.

But that case pre-dated Allen, and would have allowed a registered copyright holder to proceed with its claims under the Copyright Act’s “regime of heightened protection for a specialized group of property rights granted to copyright holders,” notwithstanding 11th Amendment concerns. (Despite the language of the amendment and the fact that Puerto Rico is not a “state,” it is treated as one for 11th Amendment purposes.  See Borrás-Borrero v. Corporación Del Fondo Del Seguro Del Estado, 958 F.3d 26, 33 (1st Cir. 2020) (citing  Fresenius Med. Care Cardiovascular Res., Inc. v. P.R. and Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 61 (1st Cir. 2003)).  Indeed, contrary to Allen’s views, the court in Molinelli-Freytes saw the Copyright Act as protecting greater rights against governmental action in noting that “copyright holders, who represent a small sub-group of property owners, [have] property rights, such as the exclusive right of reproduction, which are much greater than those contemplated by the 14th Amendment. The 14th Amendment only guarantees that property owners will not be subjected to the outrageous taking of their property or the taking of their property without constitutionally sound extra. Conversely, the Copyright Act jealously guards all the rights associated with intellectual property covered by a copyright, rendering any act which poaches these rights from the copyright holder an actionable act of infringement.”  But Allen’s advice on how Congress might meet the 11th and 14th Amendment standards obscures more than it explains, as forcing an intent element into a copyright claim makes it different than any other copyright claim even though the impact of the infringement, purposeful or not, remains the same.

In the end, exactly what the Allen court believes a constitutionally-viable copyright claim against a U.S. will look like is unclear.  It is, however, no more unclear than why, behind his supposed loyalty to the Stuart line, Blackbeard named his ship Queen Anne’s Revenge.  If we break down that name, there are, nonetheless, some interesting coincidences.  For example, Queen Anne’s name was connected to immunity before Allen–just a decade before Blackbeard christened the Revenge, the “Diplomatic Privilege Act of 170[8],  sometimes known as the Statute of Queen Anne, was the first recognition of diplomatic immunity in Anglo-Saxon law,” Report of US Senate, Judiciary Committee, Subcommittee On Citizens and Shareholders Rights and Remedies, On Diplomatic Immunity, Hearings on Feb. 6, 1978, at 129  (emphasis added). (“The Act was passed as result of an incident in 1708 when the Russian Ambassador, Andrey Matveyev, was arrested and imprisoned by London bailiffs acting on behalf of his creditors. Matveyev was freed on bail, then left the country without presenting his letters of recall. To appease Peter the Great, the Act was passed, putting diplomatic immunity in Britain on a statutory basis for the first time,” as one source notes).   More interestingly, especially for our purposes, the her name was also connected to copyright, as the Copyright Act 1710 was also known as the Statute of Anne, which was the first statute to provide for copyright regulated by the government and courts, rather than by private parties.  Entitled “[a]n act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned,” commentators have noted that “the statute is considered a ‘watershed event in Anglo-American copyright history … transforming what had been the publishers’ private law copyright into a public law grant.’[footnote omitted] Under the statute, copyright was for the first time vested in authors rather than publishers; it also included provisions for the public interest, such as a legal deposit scheme. The Statute was an influence on copyright law in several other nations, including the United States, and even in the 21st century is ‘frequently invoked by modern judges and academics as embodying the utilitarian underpinnings of copyright law.’”

It seems ironic — in the most disconcerting way — that copyrighted photographs of a vessel bearing the same Queen’s name would find themselves defenseless from state-sponsored copyright piracy, especially since the Statute of Anne provided such a foundational protection of intellectual property.  The Statute of Anne, both in its original land and in the United States to which it was transplanted so successfully, became part of copyright’s enduring legal mythology, as Professor Oren Bracha has pointed out in several articles.  After Allen, one has questions that the Supreme Court did not address.  Those include “are state university systems now insulated from the copyright rules that apply to other universities and those who create course backs for them?” See Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (SDNY 1991).  In fact, United States Senators Leahy (D-Vermont) and Tillis (R-North Carolina) have already asked similar questions, and tasked the Copyright Office to find answers and examples.   They might also include “what one state that has a registered copyright will do when another state infringes that copyright, perhaps North Carolina, which itself pass Blackbeard’s Law, claiming not only the right to infringe with impunity but to grant itself ownership of the infringed materials?” (Yes, states can register copyrights: “Works (other than edicts of government) prepared by officers or employees of any government (except the U.S. Government) including State, local, or foreign governments, are subject to registration if they are otherwise copyrightable,” as noted in section 206.03 of the Compendium II of Copyright Office Practices maintained by US Copyright Office).  In closing this paragraph, I should note that the text of the 11th Amendment does not expressly apply to one state suing another in federal court, and the original jurisdiction of the Supreme Court under Article III, Section 2 of the Constitution apply to all cases “in which a State shall be Party.”   Maybe the Supreme Court would have felt differently about this case if they thought they would become a trial court on state v. state copyright claims, which could expand where a state and private actor are co-authors or co-copyright owners.

The irony, of course, is perhaps not at all unexpected for others, as some have written that “the Statute of Anne can be considered not merely the progenitor of the copyright movement, but also the spring from which American copyright confusion began to bubble.”  But the complications here come from the constitutional, and not the copyright, side, so such criticism of Queen Anne’s legacy is a bit gratuitous.  Instead, perhaps Queen Anne’s Revenge is still to come, and will take the form of common sense Congressional legislation to make States directly liable for damages for copyright infringement, and not leave copyright owners with only the injunctive relief available in an Ex Parte Young application directed as state officials to avoid 11th Amendment concerns.   If there was ever a time to float such an idea, the time would be now, and the portal is available to make the case.  Until then, as any fellow sea traveler, pirate or not, might close, “I wish you a fair wind ever and always.”