Blackbeard’s Shipwreck and Video Piracy Claims

the official law to be hidden behind a paywall? Joining me as intellectual property litigator Terrence Ross, a partner at Captain Nuten Rosenman. So this is a case bearing the caption Georgia versus Public Resource Org, Inc. And involved an administrative body within the State of Georgia government called the Georgia Code Revision Commission And the Georgia Code Revision Commission is passed with collecting law is that the state legislature in Georgia passes and publishing them in some sort of

organized way. So this commission is the official publisher of the official Code of Georgia annotated. Now it's important to explain what an annotated code is in most states and the federal government, the law is published as it comes out of the legislative body. It is simply organized within a code. It's given section numbers and chapter or title numbers so that people can easily find what they need

to refer to. However, in a handful of states, such as Georgia, there are annotated official codes, and by annotated we mean yes, the language of the law that was passed is there, but in addition, there will be some sort of commentary that immediately follows and applies to each section. So, for example, it could say that this section of the law was passed by the state legis lature in order

to amend another section that previously existed. It's almost like a historical footnotbody, but it can encompass enormous range of informational material, and that becomes important here. So what happened is that a public interest organization called public Resource dot org went out and bought the entire current official Code of Georgia annotated, many many volumes, at a very significant

cost thousands of dollars. They then digitalized every page of the official Code to george Annotated, and they posted it on a website where they made it available for free to anyone who wanted to read the Law of Georgia.

Fedlis to say that Georgia Could Revision Commission was a little bit upset about this because they have a copyright in the Official Code of Georgia annotated, and so they brought a copyright lawsuit against Public Resource Order alleging infringe it through the publication on Moss of the entire code on the Internet. So it seems like they have a

good claim. What's the issue? So the issue is whether or not this Georgia Code Revision Commission is an author within the meaning of the Copyright Act such that it can actually own a copyright in the Official Code of Georgie annotated and therefore be a plaintiff to enforce copyright

against infringers. And the Eleventh Circuit ruled that the Georgia Code Revision Commission was not the author of the Official Code of george annotated and therefore could not take out a copyright in it and could not bring a copyright

infringement lawsuit against Public Resource dot Org. So in the decision, could the justices make a distinction between the official law and the commentaries there is case law out there in which attempts have been made to copyright purely the statutory enactments without any comment, and those cases uniformly say that that's not allowed. So the fact that this is an annotated code makes it different, and which is why the Supreme Court accepted this case in order to lend some

clarity in this area as to that particularly distinction. Now, the court below, in what I thought was one of the best opinions in a copyright case I've read in some time. But I praise yes it is Judge Marcus who wrote the decision below, wrote a decision that every American should read. Just quite simply. It is both elegant and profound and goes to the nature of what we

are all about as Americans. Judge Marcus says, and I'm quoting here, the people are the constructive authors of official legal promulgations of government that represent an exercise of sovereign authority. And because they are the authors, the people are the owners of these works, meaning that the works are intrinsically public domain material and therefore copyrightable. He's laying down a line in the sand that says, I don't care what

excuse you have for copyrighting the law. You can call it an annotated work, the commentary on the work, but you cannot take away the right of the people to unfettered access to the law. It is a very very important decision, one that carries great consequence beyond copyright and goes to the heart of the American experiment, which is who owns the law? Who ultimately is the sovereign authority?

And Judge Marcus includes that the people are the ultimate sovereigns, not the legislature and certainly not the Georgia Code Revision Commission, and therefore this is not copyrightable material. Coming up on Bloomberg Law Blackbeard Ship at the Supreme Court. You're listening to Bloomberg Law with June Grozzo from Bloomberg Radio. It's a case of video piracy involving the famous pirate Blackbeard Ship three centuries after that ship was wrecked off the

coast of North Carolina. And even though pirates don't care much about property rights, the documentary filmmaker who's accusing North Carolina of pirrating his footage of the wrecked ship, certainly does. There was little mention of black Beard during the Supreme Court arguments over the alleged copyright infringement. The justices were more concerned with North Carolina's argument of state sovereign immunity. Justice Stephen Brier question whether sovereign immunity would let a

state profit unfairly at the expense of creators. What the state decides to do with its own website charging five dollars or something is to run rocky uh Mrs Marvel whatever? Uh spighter man and uh perhaps groundhowk day? All right? Now? Great idea several billion dollars flows into the treasury. I've been talking with intellectual property litigator Terence ross a partner Captain Uten Rosenman. So Terry tell us about this pirate's tale.

So Mr Allen, who is the purported copyright owner, specializes in searching for and exploring underwater shipwrecks, and in nine six he obtained a permit from the state of North Carolina to explore for specifically pirate shipwrecks off the coast of North Carolina. And what makes this sort of interesting case is that he's the person who eventually found the famous pirate ship used by Blackbeard. If you were called Blackbeard was an Englishman by the name of Edward Teach,

who for pirate purposes, went by the name Blackbeard. In seventeen seventeen, he captured a French merchant ship called the Queen and Revenge. He refitted it as a warship and used it to terrorize ship being in the coastal regions between North Carolina and Florida for about a year. And then he was cruising off the coast of Beaufort, North Carolina in seventeen eighteen and managed to run in aground.

He abandoned the ship. It eventually sank, and the area they're off the coast of Beaufort apparently is constantly shifting and changing, so the ground he ran the ship onto sort of disappeared. The ships were disappeared, people lost track of where it was, and Mr Allen was the one who rediscovered it. Now. As part of his explorations, Mr Rout takes very detailed videography and underwater still photography, and

that's where this case starts. As part of the permitting process from the State of North Carolina, Mr Allen had to agree to submit the film and photographs he was taking to the state, and the state had certain rights to use it, not unlimited rights, but certain rights to use it. The long and short of it is as astral and took the position that the state North Carolina was abusing its rights and making use of his video footage in an unauthorized way, and he brought a copyright lawsuit.

He had copyrighted all of the film and photographs with the United States Copyright Office, and so he was entitled to take action in a court of law to defend his entitlement to those copyrights, and he did so. Tell us about the legal issue here. The legal issue is one of sovereign immunity. In English law countries, the sovereign is generally considered to be immune from lawsuit unless the sovereign has expressly agreed that citizen can bring a suit

against the sovereign for some specific purpose. And so in this country, both the federal government and the states have passed legislation that allows individual citizens in certain circumstances to bring suit against them. For example, if you slip and fall on federal land or state land and there's some negligence on the part of the federal government or the state government. Almost every jurisdiction as a piece of legislation that allows that sort of tort action to be filed.

The key here is though, that the sovereign has to have allowed the lawsuit. So the defense made by the state in North Carolina was the officials of the government of North Carolina are entitled to sovereign immunity and they cannot be suited for copyright infringement. And that's the crux of the legal issue that makes it sound like it's an open and shut case. What's the problem. Copyright lawsuits against state officials is not something that Mr Allen dreamed

up for the first time. They have been around for decades and they have typically been dismissed because the state officials are protected by their state sovereign munity laws. This led historically to some really egregious cases in which there was blatant, knowing copyright infringement by state officials in order

to profit off of someone else's work. And Congress finally said, you know, enough is enough, and they passed a piece of legislation called the Copyright Remedy Clarification Act of in that Congress used its power under Article one of the United States Constitution, specifically the power to enact and enforce copyright laws on that basis, they abrogated sovereign immunity for states and for state officials or infringement of copyright, and

it could not have been more clear. The legislation says, any state, any instrumentality of a state, and any officer employee of a state, or instrumentality of state acting in his or her official capacity shall not be immune under the eleventh Amendment of the Constitution of the United States warrender and any other doctor in a sovereign immunity from suit in a federal court by any person, including any governmental or non governmental entity, for a violation of any

of the exclusive rights of a copyright owner. Congress wanted to end sovereign immunity for states and state officials for copyright and infringement, and they thought they had done so in the Copyright Remedy Clarifification Act. And so when in the District court in North Carolina, the state defended by saying its officials had sovereign immunity could not be sued for copyright infringement, Mr Allen responded by saying, no, no, no,

that is incorrect. You lost your sovereign immunity back in as a result of Congress's enactment of Copyright Remedy Clarification Act. What did the justices seem mainly concerned about during oral arguments and any inclination as to how they'll rule. The argument made by the State of North Carolina was that the Copyright Remedy Clarification Act was not a valid exercise

of Congress's power to abrogate sovereign immunity. And the reason they said that was that Congress had expressly, in passing that act, pointed to Article one of the Constitution as the basis for their power to do it. After passage of the Copyright Remedy Clarification Act, the Supreme Court in another case called Seminal Tribe in connection with waiver of sovereign immunity for patent infringement, the Supreme Court had said that Article one does not provide the basis upon which

you can abrogate sovereign immunity for a state. And so North Carolina came in and said, you know, based on the Spring Court Seminal Trit case, which had to do with patents, not copyrights, but the reasoning should apply equally to copyrights, and therefore Congress's reliance upon Article one of

the Constitution is misplaced. The law is invalid. Now, the response, in a response that seemed to gain some traction with the justices at or argument, the response from Mr Allen's attorneys was that section five of the Fourteenth Amendment would provide this power to abrogate sovereign immunity. Now, the tricky part of the whole thing is that Congress never mentioned Section five of the Fourteenth Amendment as the basis for passing this law. It expressly relied upon Article one of

the Constitution. I think that what the Court will do, because this tends to be a very pragmatic court with respect the copyright matters, is to say that it does not matter that they didn't mention section five or the fourteenth Amendment. Otherwise, and this is the sense you got from or argument. Otherwise, the Court would be invalidating the law, sending it back to Congress, and Congress would simply have to go to the motion of re enacting it, but

this time mentioning the fourteenth Amendment. And that seems like sort of a complete waste of everybody's time. And this is a pragmatic Supreme Court in copyright matters, and so I think the sense from the or argument was why go through that charade of requiring Congress to re enact the exact same law and this time site to the Fourteenth Amendment, When we the Supreme Court can simply say it was a valid exercise of Congressional authority under the

fifth section of the Fourteenth Amendment. How important will this ruling be? It seemed as if some of the justices were skeptical about how widespread this problem was. That is absolutely correct. There was a sense on the Court that there is not a lot of copyright infringement by the states. I think the problem is at that point of view

misses the historical perspective of here. But the fact is Congress past the Copyright Remedy Clarification because there had been a spate of copyright infringements that were blatant and egregious by states and state officials. And the fact that there has been so little state copyright infringement since that time merely goes to justify passage of the Copyright Remedy Clarification Act. In the first place, it was successful. It stopped state

actors infringing upon copyright owners rights. And I think at the end of the day, the Supreme Court will come to the conclusion that the reason you've seen so little copyright infringement by state officials of late is because of this law, and that if they invalidate it, there will be this gap during which the lack of waiver of solid immunity will be exploited by state officials. That's Terence ross A partner Captain uten Rosenman, and that's it for

this edition of Bloombard Law. I'm June Grosso. Thanks so much for listening. H