Watch Out North Carolina! Queen Anne Will Get Her Revenge

Source; Joseph Nicholls, 1726; Wikimedia Commons

For several years now I, and others, have been writing (here, here, and finally, here) about the so-called “Blackbeard case” and his ship the Queen Anne’s Revenge, sunk off the North Carolina coast in 1718. It involves a case of blatant piracy, not by Blackbeard, but by the State of North Carolina which not only infringed the copyright of the film made of the discovery and salvage of the wreck produced by filmmaker Rick Allen, but then passed a law (colloquially known as “Blackbeard’s Law”) explicitly depriving Allen of his copyright in the film. It was a case of state-initiated and sanctioned piracy, all hiding behind the doctrine of state sovereign immunity as expressed in the 11th Amendment to the US Constitution. For those not familiar with the facts of the case, here are the main details.

About twenty years ago Intersal Inc., a company formed to locate and excavate historic wrecks, located the remains of Queen Anne’s Revenge. The company signed an agreement with the State of North Carolina allowing it, among other things, to produce a documentary film for broadcast detailing the story of the research and salvage of the ship. Rick Allen’s company, Nautilus Productions, was engaged as the official video crew and the footage was widely broadcast on commercial networks, licensed by Nautilus. Subsequently there was a dispute between Nautilus and the State over the use of the footage. A settlement agreement was reached by which North Carolina paid Allen to settle alleged copyright infringements, and promised to cease such activity. The State did cease infringement but in 2015 it sought to indemnify itself by passing legislation, known colloquially as “Blackbeard’s Law”, requiring that all recordings and other documentary evidence of a derelict vessel or shipwreck in the custody of any agency of the North Carolina government be a public record. After the passage of “Blackbeard’s Law” the State resumed infringement both online and in print and Allen issued takedown notices that were ignored. In other words, North Carolina passed targeted legislation invalidating Allen’s copyright and depriving him of licensing opportunities in order to suit itself. Not surprisingly, Allen sued.

The suit went all the way to the Supreme Court of the United States which agreed to decide whether North Carolina’s state sovereignty, as granted by the 11th Amendment of 1795, trumped legislation passed by Congress in 1990, the Copyright Remedy Clarification Act. This law stated explicitly that state sovereignty granted under the 1795 Constitutional Amendment did not provide immunity from suit in Federal court by any person for a violation of any of a copyright owner’s exclusive rights provided by federal law. Recall that copyright is also embedded in the US Constitution as part of the powers of Congress in Article 1; “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The Supreme Court reached its decision on March 23 of this year, finding that the 1990 Congressional legislation did not remove North Carolina’s sovereign immunity. North Carolina got away with piracy! And now we come to Queen Anne’s revenge. Given the importance of this ruling for copyright, it is surely serendipitous that the shipwreck in question is named after the British sovereign (1702-14) for whom the Statute of Anne, the seminal piece of British legislation that established the copyright of authors, is named. The Statute came into force in April, 1710 (not 1709 as is sometimes erroneously stated, although it was introduced into Parliament in January of 1710 which at that time was considered 1709 as Britain was still on the Julian rather than Gregorian calendar. If that is not confusing, I don’t know what is).

The Statute of Anne became the foundation and inspiration for the passage of the first federal Copyright Act in the United States, in 1790. (Copyright blogger David Newhoff has a self-described “nerdy” take on the historical connection between the Statute and the US Copyright Act in the context of the Blackbeard case, here). The 1710 Statute created an author’s, as opposed to a printer’s right, and is generally considered to be the first copyright law protecting creators, although in the 15thand 16th Centuries the Republic of Venice granted a “privilegio” which conferred monopoly rights to print, import or sell particular works. This is similar to the rights granted printers of the Stationer’s Company in London prior to the enactment of the Statute of Anne. However, there are documented cases of the privilegio also being granted to authors, as I explored in a blog post on the history of copyright a couple of years ago.

But back to Queen Anne’s revenge. Blackbeard’s ship was not originally christened with this name. It was known by the more banal name of the Concord when it was launched in Bristol in 1710 (the same year as the Statute. More serendipity!) Then it was captured by the French, with whom the British were almost constantly at war for several centuries, and renamed La Concorde (what else?), and became a slave ship. After Blackbeard (Edward Teach) seized the Concord, he renamed it the Queen Anne’s Revenge.  Although no-one knows for sure, the speculation is that he did so to identify with the Pretender to the British throne, the Catholic James Stuart (known as the “Old Pretender”). Queen Anne, although not Catholic, was the last of the line of Stuarts and after her death, the throne had passed to her nearest Protestant relative, her second cousin George of Hanover–who became George I of Great Britain–rather than to Anne’s half-brother James Stuart. (Are you confused yet?). Anne, despite no less than 17 pregnancies, had only five children born alive, and four of them perished before the age of 2 (and two lived just minutes). Her son died at age 11. (Here is a “pop history” account of Anne’s unhappy and complicated life, for those interested in historical trivia). Smallpox was the main cause of death showing that, just as today, royalty affords no protection against epidemics, Prince Charles having contracted COVID-19 although his health outcome had a much happier ending. But Anne had no living children so an alternative solution had to be found. George of Hanover was Parliament’s choice because he was Protestant and James Stuart was Catholic.

I don’t want you to think, however, that Blackbeard or other Jacobite-leaning pirates were concerned about whether a Catholic or a Protestant sat on the British throne; the main reason for their professed support for the Pretender was because under George I the Royal Navy pursued a vigorous anti-piracy campaign, whereas previously the pirates had more or less been left to their own devices as long as they focussed on raiding Spanish and French ships. Proclaiming loyalty to the Pretender gave the pirates a form of legitimate cover.

While Queen Anne never did get her revenge if revenge meant restoring the Stuarts to the British throne (the fate of the James Stuart’s son, Bonnie Prince Charlie, the “Young Pretender” who went down to defeat at the Battle of Culloden, is well known), she may yet get her revenge when it comes to stopping the piracy practiced by the State of North Carolina. When it reached its decision in March to uphold the State’s claim of sovereign immunity (based largely on precedent, plus the fact that Congressional legislation should be allowed to abrogate provisions of the US Constitution in only the most extreme and limited circumstances, and only when such actions are intentional and unconstitutional), the Court nonetheless offered a lifeline to copyright holders. It wrote that when Congress passed its legislation in 1990 it “likely did not appreciate 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”.

Therefore, said the Court, “going forward, Congress will know these rules. And under them, if it detects violations of due process, then it may enact a proportionate response. That kind of tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice.” (emphasis added).

Passing new legislation takes time, as we all know, but nevertheless the ball has started rolling. Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) have written to both the US Patent and Trademark Office and to the US Copyright Office to request that the Offices undertake research “to determine whether there is sufficient basis for federal legislation abrogating State sovereign immunity when States infringe copyright”.

The two Senators noted that although only a handful of state infringement cases was identified thirty years ago when the issue was studied at the time of the passage of the Copyright Remedy Clarification Act, in recent years there have been reports that copyright infringements by State actors have become more frequent. They therefore instructed the two Offices to “study the extent to which copyright owners are experiencing infringements by state entities without adequate remedies under state law”. This study is to include the extent to which such infringements appear to be based on intentional or reckless conduct, picking up two of the points made in the Supreme Court ruling. The Offices are to report back by the end of April 2021.

There should not be much difficulty in documenting the growing problem of state entities infringing copyright and then hiding behind state immunity, as it is a widespread and common occurrence. It has involved the libraries of state institutions of higher learning copying teaching materials, state universities using photographs without licence,  and organizations like state pension funds infringing copyright in business journals. The next time, with the benefit of the Supreme Court ruling and guidance in the Blackbeard case, and with further evidence of widespread infringement of copyright by State governments or their entities from the USPTO and Copyright Office studies (including the blatant example of North Carolina’s “in-your-face” Blackbeard Law), Congress will be able to pass a bullet-proof law that will withstand Supreme Court scrutiny. State sponsored copyright piracy should then come to an end. North Carolina’s Blackbeard Law could even be challenged and would likely be invalidated under judicial review.  Queen Anne will have got her (copyright) revenge after all. Sweet irony.

© Hugh Stephens 2020. All Rights Reserved.

 

 

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