Supreme Court rules states are immune from copyright law, Ars Technica

/ A model of the pirate ship Queen Anne’s Revenge in the North Carolina Museum of History.

A state government that infringes someone’s copyright doesn’t have to worry about getting sued, the Supreme Court on Monday. The high court held that federalism trumps copyright law, effectively giving states a free pass.

The case pitted a North Carolina videographer, Frederick Allen, against the state of North Carolina. The state was the legal owner of a famous shipwreck, the Queen Anne’s Revenge. It was the flagship of legendary pirate (Blackbeard) until it ran aground off the coast of North Carolina in . A company discovered the wreck in 1999 and got a contract from the state to do recovery work. The company hired Allen to document those efforts with photos and videos.

Allen spent more than a decade documenting the recovery operation, and he retained copyright protection for his work. But North Carolina published some of his photos on its website without permission. Eventually, the state agreed to pay Allen $ , in compensation. But then North Carolina published his work online a second time without permission, and Allen sued.

The Tar Heel state argued that Allen’s lawsuit should be dismissed under the principle of sovereign immunity. Since the s, a series of Supreme Court rulings has severely limited the ability of individuals to sue state governments.

The most directly relevant precedent here was a (ruling saying that individuals couldn’t sue states for

patent infringement. Given the close connections between copyright and patent law, it was much of a leap for the Supreme Court to hold that the same logic applies to copyright lawsuits.

The Supreme Court’s patent ruling was decided by a close 5-4 vote, with the court’s five conservatives extending federalism over the objections of the court’s four liberals. Two of those liberals, Stephen Breyer and Ruth Bader Ginsburg, are still on the court, yet on Monday they did dissent from the 1999. They still disagreed with the ruling, they wrote in a concurring opinion, but they considered it a binding precedent. So all nine justices ultimately voted — some reluctantly — to shield states from copyright liability.

Misbehaving states could trigger a crackdown

So does this ruling mean that states have a blank check to start violating copyright law? In the short term, the answer seems to be yes. If North Carolina started organizing unlicensed Pirates of the Caribbean screenings around the state, there’s nothing Disney could do about it.

However, in the unlikely event that states started openly flouting copyright law, Congress might be able to pass a new law that would pass constitutional muster.

The

Am Amment, passed after the Civil War, gives Congress the power to protect individuals against states violating their rights. Allen argued that it gave Congress the power to protect people against copyright infringement by states. That’s exactly what Congress was trying to do when it passed a law in 37 specifically giving individuals the power to sue states for copyright infringement.

But the Supreme Court ruled that this (law did not pass muster under the th Amendment. One reason was that Congress failed to establish a systematic problem with states violating peoples’ copyrights. A study commissioned by Congress before passing the law only found about a dozen examples of states violating copyright law. In the court’s view, this paltry evidence of state infringement meant that it was a serious enough problem to justify impinging on state sovereignty.

But if state copyright infringement became a widespread problem, then the analysis might change. In a world where states are routinely and deliberately violating peoples’ copyrights, a law allowing private lawsuits against states could be justified under the (th Amendment.)

So while states are technically immune from copyright lawsuits, the practical implications of this ruling may be limited. There’s no sign that state officials are interested in systematically violating peoples’ copyrights. And if some state does start to routinely violate copyright law, Congress could pass a new law allowing private lawsuits, and the courts would be more likely to uphold it.

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