Pirate Pirating Is Not Piracy

On March 23, 2020, the United States Supreme Court decided a copyright case with a fact pattern almost too good to be true:  should a state's unauthorized copying of copyrighted works of authorship concerning Blackbeard the pirate constitute piracy?  Here is a summary of the dispute from the Court's syllabus: 

In 1996, a marine salvage company named Intersal, Inc., discovered the shipwreck of the Queen Anne’s Revenge off the North Carolina coast.  North Carolina, the shipwreck’s legal owner, contracted with Intersal to conduct recovery operations. Intersal, in turn, hired videographer Frederick Allen to document the efforts.  Allen recorded videos and took photos of the recovery for more than a decade.  He registered copyrights in all of his works. When North Carolina published some of Allen’s videos and photos online, Allen sued for copyright infringement.  North Carolina moved to dismiss the lawsuit on the ground of state sovereign immunity.  Allen countered that the Copyright Remedy Clarification Act of 1990 (CRCA) removed the States’ sovereign immunity in copyright infringement cases.  The District Court agreed with Allen, finding in the CRCA’s text a clear congressional intent to abrogate state sovereign immunity and a proper constitutional basis for that abrogation. The court acknowledged that Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, precluded Congress from using its Article I powers—including its authority over copyrights—to deprive States of sovereign immunity. But the court held that Congress could accomplish its objective under Section 5 of the Fourteenth Amendment. The Fourth Circuit reversed, reading Florida Prepaid to prevent recourse to both Article I and Section 5.

The Supremes held for the copying state, North Carolina, on grounds of state sovereign immunity.  Thus, in an Edward Teachable moment, the Supremes decided that, pirate or no pirate, state piracy is no piracy.