Friends, gather round and let me tell you a fairy tale about the imaginary Kingdom of Nonesuch, and recount something quite surprising and unfair that happened there. Nonesuch is a progressive place, endowed with a well-developed governance and legal system, and a vibrant cultural, technological and educational infrastructure. It is a large country governed through a federal structure, and composed of a number of constituent principalities. North Begonia is one of these sub-national principalities, but there are a number of others. Being a Kingdom, it naturally has a King. Sometimes the Kings have been wise and widely respected, even though they slept a lot; at other times the King has been vain and foolish, and spent all his time watching television. But that is the problem with being a Kingdom. You get what you get.
At the federal level the Kingdom has a lawmaking Assembly of Notables, elected by the people. It also has a Court of High Judgement, staffed with learned counsel. Each principality also has its own Assembly and courts, and runs its own universities and a number of other institutions, among other local government responsibilities.
The citizens of Nonesuch are a freedom loving people. Their rights to property, freedom of speech, assembly, (even the right to carry swords and daggers, but just for self-defence, mind) and so on are protected by law. The laws are made by the Assembly of Notables in accordance with the Nonesuch Founding Rules, established many years ago by the Wise Men (yes, in those days they were all men), as amended from time to time by the Assembly and interpreted by the Court of High Judgement. Among these rights is the right of authors, artists and inventors (let’s call them creators) to have the exclusive right, for a set period of time, to control the distribution of their work. This right was included by the Wise Men in the Founding Rules in order to encourage creators and inventors to contribute to the cultural and scientific life of Nonesuch by giving them a means to earn an economic return from their work. The fact that one of the Wise Men was himself an author and inventor, a real polymath, no doubt helped in establishing these founding principles, which over time came to be protected in law and became known as copyright and patent protection.
Both principles have worked pretty well over the years, meeting the goals of the Wise Men, although protection of creativity and inventions has not been without its problems. For example, some of the principalities have not always respected the rights of creators, allowing entities that they control–like their princely universities–to avoid paying creators for their works even though they are using the authors work in teaching their students. The creators who had their rights infringed naturally turned to the laws of the land to protect their rights, and sought to bring lawsuits against the princely academic pirates. Imagine their surprise when they learned that the principalities didn’t have to obey the laws of Nonesuch when it came to protection of copyright, even though everyone else did. Why was this, they wondered? Well, it seems that when Nonesuch was formed out of the various principalities, one of the rules agreed on by the Wise Men was that the princes themselves—meaning also the entities that they owned, like their own carriage-makers, hat designers, and even universities and hospitals—were immune from being sued by citizens, subject to a few limitations that I will talk about in a moment.
But this seemed to go against the very principles of fairness and equity established by the Wise Men. Some of the creators pointed this out to the King’s officials, and one official (Oh, man he was dedicated) undertook a study to see if there really was a problem. There was. He found that the problem of the principalities thumbing their noses at the copyright laws was quite widespread, and was a significant loophole in the system that the Wise Men had set up, so he recommended that the Assembly of Notables do something about it. The Assembly had lots of things on its plate, and when it enacted legislation, this was normally well researched and thought out. The new law that the Assembly passed had just these characteristics. It specifically stated, unequivocally, that the new law was intended to remove immunity from any Princes that deprived creators of their right to copyright protection.
That new and wise law seemed like it would put the Princes in their place, and make them respect the law just the same as everyone else. But the Princes were a powerful lot and they pointed out that their forefathers would never have agreed to the Founding Rules if they thought that they would have to be subject to all of the laws of the land, just like common folk. That is why in the Founding Rules there was an implicit provision giving them immunity from being sued (later formalized through an Amendment to the Rules). Even though the Assembly had passed a specific law requiring them to respect copyright, they weren’t going to obey. So there.
However the creators still had hope. The immunity of the Princes was not absolute. Years ago certain foolish Princes had passed laws that had taken away some of the basic rights of Nonesuch citizens living in the principalities, and this caused trouble and unhappiness in much of the land. Then these Princes decided they didn’t like being part of Nonesuch any more, which caused even more trouble and unhappiness. When all the trouble and unhappiness was over, the Assembly of Notables passed a law that amended the Founding Rules. Some said this was to teach the troublesome Princes a lesson. This Amendment reined in the Princes just a bit, taking away their right to do whatever they felt like doing if their actions infringed the basic rights of citizens guaranteed by the Founding Rules. Therefore, despite princely immunity, the creators thought that their intellectual property rights given to them in the Founding Rules by the Wise Men would be protected.
But they were wrong.
More and more of the Princes became greedy and started helping themselves to the property of creators without paying for the right to do so, and when they were challenged on this they continued to wrap the cloak of immunity around themselves. One day it all came to a head because of the actions of the foolish Prince of North Begonia who got into a nasty legal dispute with one of his subjects. The Prince had asked the subject to make a movie for him, a documentary movie of all the beautiful things to see in North Begonia, and offered him a handsome sum to produce it. The subject put a lot of time and effort into making the film and presented it to the Prince, who professed himself well pleased. He was so pleased that he ordered hundreds of copies of the film to show all his subjects, but then decided that perhaps he’d been too generous and had offered too much for the film. He told the artist that he wouldn’t pay him the agreed amount, but was going to organize movie showings in all the towns of North Begonia anyway.
Now usually when a Prince acts like this with a subject, the lowly subject meekly accepts, but this artist was a strong-willed individual who didn’t think this was right. Shouldn’t the Prince have to obey the laws just like everyone else? After all, the Assembly of Notables had even passed an explicit law saying that the Princes were not immune from copyright law. But this Prince was canny. He had the Assembly of his own Principality pass a specific law saying that any film made of the “all the beautiful things to see in North Begonia” belonged to the Prince, and to the Prince alone, and that any inconvenient copyright laws would not apply.
This infuriated the subject who decided to challenge the Prince. The case finally went before the Court of High Judgement to be decided. The Court looked at the copyright amending law that had been passed by the Assembly of Notables. Did it specifically remove immunity from the Princes from copyright law infringements? Yes, indeed it did. But the Prince of North Begonia’s lawyer claimed that even if the Assembly had passed such a law, under the Founding Rules the Prince still had immunity and could break the law because, well, he was a Prince. This being a court of high judgement, all sorts of other people made submissions as well, and they pointed out the Amendment to the Founding Rules which prevented Princes from taking actions that deprived citizens of their basic rights. There was no immunity in such cases. The learned justices pondered all this.
The Assembly had passed legislation removing immunity from the Princes, but what to do about the princely immunity in the Founding Rules? True, that immunity had been limited by the Amendment, but was that Amendment applicable in this case? The justices liked to look back at what had been decided earlier by their Court. Based on an earlier patent case, one of the conditions to remove immunity was a requirement that a Prince had to deliberately break the law consistently, not just some of the time. His behaviour had to be intentional and reckless. Sometimes Princes paid for and licensed the copyrighted content they used, but sometimes—increasingly—they didn’t. It was a tough call for the eminent jurists but in the end they seemed to decide that it was okay for the Princes to break the law as long as they didn’t do it every time, that is “recklessly”, and as long as some of the time they did it by accident (oops, sorry). And was taking away their immunity really necessary to make them respect copyright? Wasn’t this overkill, they thought.
The justices also didn’t want to reverse the earlier decision that had let a different Prince off scot-free when he had infringed a patent on an invention without payment; if the Court did that it would be tantamount to saying that the original decision was wrong. (“The slate on which we write today is anything but clean”, the judges said). And Courts don’t like doing that unless there is something new to consider. But there was nothing new here; it was simply another case of the Princes up to their old tricks of stealing the property of the creators (frequently but not all of the time) and claiming immunity. They do it because they can.
I wish I could tell you that this fairy tale had a happy ending, but it doesn’t. The Prince of North Begonia got away with bare-faced piracy and other Princes are going to continue to get away with piracy until such time as the Assembly of Notables passes a new law that will end this behaviour once and for all. This will need to be a law that the Court of High Judgement can agree with. This law will have to give the Court even clearer direction (if any more was needed) that this unacceptable behaviour by the Princes must stop and must make them obey the law like all other subjects. The Assembly of Notables is very busy these days so it may not get around to doing this for a while. In the meantime, the Princes can continue to thumb their noses at the copyright laws of Nonesuch.
Since this is a fairy tale you will say that such an unlikely and unfair thing could not happen in real life. And you would be wrong.
On March 23, the US Supreme Court rendered its decision in the case of Allen v Cooper, sometimes known as the Blackbeard case. For more information see earlier blog postings on Allen v Cooper (here, and here) and read the full judgement here. The Court said that it was legal for the State of North Carolina to invoke state sovereign immunity as a defence in the copyright infringement case brought by film-maker Rick Allen. As IP Kat blogger Thomas Key noted;
“Copyright suffered a blow in the United States today, at least with respect to infringement by state actors…one may expect rampant copyright infringement by states and their agents in the wake of this decision which endorses the behavior.”
Neither the fairy story nor the Blackbeard case had a happy ending, although some see a glimmer of hope, a bit of light at the end of the tunnel. The Court seemed to invite Congress to take action to close the loophole. It is now up to the US Congress to act to protect creators in the US from blatant piracy by state governments and organizations controlled by them under the guise of “state sovereignty”.
© Hugh Stephens 2020. All Rights Reserved.