Category: Law & Policy

Wrestling With the Ghost of Queen Anne: A Nerdy Look at Allen v. Cooper

Most readers know that the conflict in Allen v. Cooper began when the State of North Carolina made unlicensed use of Rick Allen’s copyrighted AV and photographic works documenting recovery and research of Blackbeard’s flagship Queen Anne’s Revenge. On March 23rd, the Court ruled that Allen was barred from bringing suit against the State under the principle of “sovereign immunity,” as expressed in the Eleventh Amendment, and further reiterated that this immunity could not be abrogated, even for a plaintiff defending a constitutional right, expressly protected by federal law, the CRCA of 1990.  My last post about this case discussed the court’s reasoning.

As a creators advocate, I was disappointed that the Court found itself guided by precedent to scuttle Allen’s claim. But I will also admit that, as a history geek, and one who likes a good coincidence, it is hard not to appreciate the fact that the pirate ship at the center of this story carries the mind back a few centuries across the tempests of Anglo-American legal precedents, with which the Supreme Court found itself contending in 2020.

What may be immediately resonant to the copyright nerd is that the pirate ship Queen Anne’s Revenge, shares the eponym with the English legislation, the Statute of Anne, passed in 1710. Often referred to as the first authors’ copyright law, the Statute of Anne was the model for America’s first copyright statute in 1790. But there is more beneath the paint on Blackbeard’s ship than nominal happenstance. If you will indulge me …

The Divine Right Still With Us?

We Americans have generally been taught to think of the Revolution as an outright rejection of the “divine right of kings,” and that the cheekiness of the war was punctuated by an equally audacious Constitution that directly expresses contempt for nobility and royal prerogative. But, as almost any lawyer will tell you, this ideological departure (on paper) from the mother country was not matched by a clean break from English law or custom. How could it have been when the Framers and citizens of new America were, after all, English?

So more than 230 years after kicking George III in the pants, faint remnants of the “divine right” still echo in the halls of American jurisprudence, and still befuddle large segments of the population, who earnestly declare that certain individuals are “sent by God” to lead the United States. That profoundly un-American sensibility is a much bigger sociological phenomenon than I will presume to address here, but in a case like Allen v. Cooper, the “divine” anachronism takes the form of “state sovereign immunity,” which the Supreme Court described thus in 1999 in Alden v. Maine:

“The doctrine that a sovereign could not be sued without its consent was universal in the States when the Constitution was drafted and ratified. In addition, the leading advocates of the Constitution gave explicit assurances during the ratification debates that the Constitution would not strip States of sovereign immunity.”

There is an extent to which that opinion alludes to the haggling at the founding period, which was necessary to encourage ratification of the Constitution by those factions who would have preferred—indeed had expected—that the newly independent states would be separate (i.e. sovereign) nations after the war. At the same time, however, the notion embodied in the word sovereign is arguably a holdover from English common law, an epic tale in which the English hacked away at, though never quite eradicated, the privileges of its monarchs to do whatever the hell they wanted.

Queen Anne’s Revenge – Against Whom?

At present, historians can only speculate as to why the pirate William Thatch (Teach), a.k.a. Blackbeard renamed his captured French ship the Queen Anne’s Revenge in 1717 or, indeed, who or what the metaphorical target of the late queen’s retribution might have been. It is guessed by some that the British Navy sailor turned pirate espoused a fealty for the Jacobite cause to restore the Stuart line to the throne; or it is theorized that because Thatch fought for the British in “Queen Anne’s War,” the rechristening was a dig at the French from whom he’d commandeered the vessel. Apropos the Jacobite theory, Anne was indeed the last of the Stuart monarchs, and when she died in 1714, the Crown passed to her husband George I, a prince of Denmark and a German speaker. Consequently, the disgruntled Jacobites invoked the “divine right” to argue that the Stuarts were the true heirs to the throne; but, in truth, Anne’s ascension itself could hardly have supported any divine sensibilities.

In fact the Stuart dynasty, beginning with James I in 1603, was rather well pummeled by the unrest that rocked England for nearly two centuries over the matter of whether the Crown or the Parliament was supreme—a fact dramatically manifest in the beheading of Charles I in 1649 following civil war. In this long and byzantine history, all royal prerogatives were, naturally, tethered to the question of the “divine right,” which was of course complicated by factions of religious faith. 

While there is no hope of unpacking all that history in a short post, suffice to say that Queen Anne’s ascension to reign over Great Britain in 1707, was a byproduct of the Glorious Revolution that deposed her father James II, and was more generally a result of forces that had substantially limited royal prerogatives. Moreover, Anne’s reign was reportedly marked by a fairly judicious exercise of her authority in balance with England’s nascent republicanism. So if Blackbeard did name his newly acquired flagship in a fit of Jacobite zeal, Queen Anne was hardly an avenging spirit in that regard. Likewise, the copyright law that bears her name is something of an anti-monarchical milestone itself.

The Statute of Anne – A Break With the Sovereign

The short description of the Statute of Anne is that it was the first in Anglo-American law to transform copyright from a publisher’s right into an author’s right. The full story weaves in and out of the aforementioned political/religious turmoil, beginning with the fact that right is not the correct word to describe the monopoly privileges granted by English sovereigns to the more than 100 trade guilds of London, including the organization of booksellers known as the Stationers’ Company. The exclusive “right” to publish—a monopoly that was ad hoc at best—may be described as a proto-copyright regime, but one that has little resemblance to modern copyright law. Regardless, the exclusive privileges granted to the Stationers’ Company, and every other guild in London, were among the royal prerogatives that were often at the heart of conflict in the larger narrative of controversy between royalists and parliamentarians. 

It is true that one important feature of the Statute of Anne is that the preamble states that its purpose is to protect authors from unlicensed printing of their manuscripts. Scholars also know the more complicated history that the bill was catalytic to still-murmuring debate as to whether the author’s right is grounded in natural rights or is purely a creature of statute. For the purposes of this post, though, I would note that the Statute of Anne, as an act of Parliament interceding on behalf of authors, is exemplary of the diminished prerogatives of the Crown by the end of the seventeenth century. It represents not only a diminishment in the power of the Stationers’ Company, but a diminishment in the power of the monarch to grant privileges at all. 

American Copyright & Citizen Sovereignty

Although the American Framers did borrow both rationale and key mechanisms from the Statue of Anne for the first American Copyright Act of 1790, we cannot overstate the significance of the intellectual property clause in Article I as both a symbolic and pragmatic split with the mother country, and the baggage embodied in her statute. Article I, section 8, paragraph 8 is the first and only mention of an individual right in the Constitution prior to adoption of the Amendments. And particularly with regard to copyright (because it protects expression), I would argue that the clause reinforces the notion that the individual citizen is sovereign, and, therefore, Congress may adopt laws necessary to protect the citizen’s dominion over the products of his or her mind. So, how is it that the “sovereign” State is allowed to invade that principle?

Any number of scholars will very reasonably maintain that American “state sovereign immunity,” affirmed in the Eleventh Amendment in 1795, is both divorced from the spirit of monarchical absolutism and has pragmatic purpose in our federalist system, which is why many legal professionals will use the term “Eleventh Amendment immunity.” Nevertheless, as a practical matter, it cannot be denied that Rick Allen was unable to avail himself of his Constitutional right to hold the State of North Carolina liable for taking his property. Much like kings and queens used to do to their subjects. So the words sovereign immunity are not wholly emancipated from their feudal origins. 

American copyright law became something very different from its English precedents, not least because of the First Amendment. England’s proto-copyright regimes were, for centuries, entangled with the state’s authority to approve the publication or distribution of a work in the first place, and many of these regimes lasted into the twentieth century. For instance, the legal basis for the Master of the Revels, who approved works for the stage in Shakespeare’s time, was still extant, albeit in a limited form, until 1968. 

The sovereign right of the American citizen to create more or less whatever he or she wants (notwithstanding a few bouts with obscenity laws), represented a significant break with those ancient ties. And a consequence of that split was the greatest output of professional creative works anywhere the world. Yet, as we see in Allen v. Cooper, modern jurisprudence remains haunted by these fragments of history, drawing us back to a time when pirates and princes took what they wanted, and citizens could hardly tell the difference between the two.   

Anne photo: by Chris Dorney 

Pirate image by: neelix3k

Document: Statute of Anne, London (1710), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

Allen v. Cooper: Justly Decided If Not Exactly Just

Professional creators following the case Allen v. Cooper were no doubt disappointed by the Supreme Court’s March 23 decision—a unanimous holding that the States (and/or their agents) are generally free to infringe copyrights with impunity. But perhaps authors of works should not to be entirely discouraged on this matter, because it seems clear from the opinions written that the Justices would have preferred if the law had led them to the opposite conclusion. Moreover, a path for legislative reform remains open.   

A Quick Recap

See post here, or read more extensively on the website of plaintiff Rick Allen. The short version is that Allen’s company Nautilus Productions filmed and photographed excavation and research work performed on Blackbeard’s flagship Queen Anne’s Revenge, which was discovered off the North Carolina coast in 1996. Subsequently, the state made unlicensed uses of Allen’s copyrighted materials, primarily online, and when Allen sued for infringement, North Carolina invoked its sovereign immunity under the Eleventh Amendment, which bars citizens or entities from bringing federal suits against the states or its agents. 

In 1990, Congress passed two laws, the Patent Remedy Act and the Copyright Remedy Clarification Act, both designed to abrogate state sovereign immunity specifically for patent and copyright claims where states are alleged to be the infringing parties. In 2015, North Carolina passed “Blackbeard’s Law,” which specifically lays claim to photographic and AV works documenting shipwreck material a “public record.” So, why didn’t Congress’s CRCA protect Allen’s copyrights in this case? Well …

The IP Clause, the Eleventh and the Fourteenth Amendment walk up to the bar …

As we all know, Article I of the Constitution grants Congress the authority to establish copyright and patent laws; and one rationale for that clause, as Madison noted in Federalist 43, was the assumption that the new nation would be best served by uniform (i.e. federal) laws for intellectual property. (In copyright practice this uniformity was not fully adopted until 1978, and then there’s the whole sound recordings morass, but Madison’s seminal hopes were succinctly clear.) 

At the same time, the prospect of erecting a federal court system was a sensitive matter among anti-Federalists, who were hardly sold on the prospect of union among the States in the first place, let alone allowing their State governments to be potentially sued in the new federal courts by citizens of other States. Thus, in response to just such a case arising, the Eleventh Amendment was passed in 1795 to affirm the principle of “state sovereign immunity,” already extant at the founding period.

Without trying to cram a history of sovereign immunity into this post, suffice to say that States are not generally subject to litigation in federal court but for a handful of exceptions, and most of these exceptions derive from the Fourteenth Amendment of 1868. Relevant to Allen v. Cooper, Section 1 of the Fourteenth affirms civil liberties to all Americans, and Section 5 affirms Congress’s authority to pass such laws as may be necessary to enforce Section 1. Thus, sovereign immunity is abrogated where a State’s conduct or law runs afoul of constitutionally protected rights. 

So, it might seem reasonable to assume that the Article I power of Congress to write copyright and patent laws, which secure the intellectual property rights of all U.S. citizens, would naturally fall into the scope of protections affirmed in the Fourteenth Amendment. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law….” 

In fact, whether one views IP protections as grounded in natural rights or as purely utilitarian forms of property rights, the Fourteenth Amendment, combined with the Article I power, would seem to support Congress’s authority in 1990 to write the pair of laws that explicitly declared that sovereign immunity does not foreclose infringement claims brought by copyright and patent owners against the States. Alas, not so much.

A Very High Standard

Allen’s claim in this case rested on the premise that the 1990 CRCA abrogated the sovereign immunity of North Carolina; but unfortunately, the Supreme Court had already weighed this exact argument with respect to the CRCA’s sibling law, the Patent Reform Act. In the 1999 decision, in a case known as Florida Prepaid, the Court held that the Patent Reform Act did not abrogate sovereign immunity for two intertwined reasons. Article I powers alone are not sufficient grounds for Congress to circumvent sovereign immunity, and this can only be addressed by Section 5 of the Fourteenth Amendment where there is compelling evidence of a harm being intentionally caused by the State, and where no other remedies (i.e. due process) are available. 

In legal terms, the opinion states, “a Section 5 abrogation of sovereign immunity must be ‘congruent and proportional’ to the Fourteenth Amendment injury it seeks to remedy.” In practical terms that means if Congress wants to salvage the intent of the CRCA and/or the Patent Reform Act, they will need evidence, which proves that intentional infringement by State actors poses a significant threat to the interests and rights of authors and/or inventors. 

In reference to Florida Prepaid, the Kagan opinion reminds us, “Congress, we observed, ‘did not focus’ on intentional or reckless conduct; to the contrary, the legislative record suggested that ‘most state infringement was innocent or at worst negligent.’” Those data are not sufficient to circumvent the sovereign immunity. But that was then.

Especially with regard to works protected by copyright, digital technologies have changed the landscape considerably since 1990—even since 1999. Consequently, State actors (e.g. State universities) have both new means and new motives to infringe more frequently and more harmfully than the pre-digital age. Seemingly aware of these contemporary realities, the Supreme Court’s discussion of Allen v. Cooper connotes discontent with its unavoidable conclusion.

The Court Rules Justly But Hints Justice Is Not Served

The majority opinion written by Justice Kagan, and joined by Roberts, Alito, Gorsuch, Sotomayor, and Kavanaugh, with Thomas, Breyer, and Ginsburg concurring, was bound by precedent, namely Florida Prepaid. Allen’s appeal to the CRCA could not hope to overcome the principle of stare decisis, let alone in a matter that sets so high and precise a bar for setting aside states’ rights. Nevertheless, the opinions of the Justices not only present a roadmap that Congress might follow to seal the sovereign immunity loophole for copyright (and patent) owners, it practically calls upon Congress to do so. The Kagan opinion asks…

“All this raises the question:  When does the Fourteenth Amendment care about copyright infringement? Sometimes, no doubt. Copyrights are a form of property. And the Fourteenth Amendment bars the States from “depriv[ing]’ a person of property ‘without due process of law.’ … So an infringement must be intentional, or at least reckless, to come within the reach of the Due Process Clause.” (citations omitted)

Then, in a passage that all but elbows the IP Subcommittee in the ribs …

“Congress 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. But 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.”

This less than subtle overture to the legislature was one of two points of moderate dissent by Justice Thomas, whose concurring opinion admonished the Court to refrain from advising Congress on the authorship of future legislation. But writing almost the opposite view, the concurring opinion by Justice Breyer, and joined by Justice Ginsburg, laments the unavoidable conclusion necessitated by law, if not by principle. “That our sovereign-immunity precedents can be said to call for so uncertain a voyage suggests that something is amiss,” the Breyer opinion declares. 

Amiss indeed. From the moment Madison and Pinckney drafted the IP Clause, it cannot have been imagined, let alone desired, that the individual States would be left free to appropriate intellectual property from individual citizens. After all, it was a State legislature, in the Massachusetts copyright law of 1786, that declared, “As the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves, and as such security is one of the natural rights of all men, there being no property more peculiarly a man’s own than that which is produced by the labour of his mind.”  

DMCA Review II – Looking to foreign jurisdictions, when some answers are already here.

As we batten down the hatches to weather the present storm, streaming entertainment enters the foreground of our new and temporary reality in which we voluntarily circumscribe daily life to the confines of home. This is no time, of course, to fuss about media piracy per se. We have bigger fish to fry, but one must keep busy, and so on the subject of streaming entertainment, the Senate Judiciary Committee on March 10th held its second hearing in what will be a year-long review of the 1998 Digital Millennium Copyright Act. 

This time, the IP Subcommittee turned its attention to foreign jurisdictions and piracy. The thesis question was this:  How do other countries address piracy and what, if anything, can we learn from them?  Naturally, the EU Directive of 2019, especially Article 17, which was designed to incentivize the largest user-supported platforms to enter into license agreements, was discussed in both of the two-panel sessions. But from testimonies as oppositional as Stan McCoy of the Motion Picture Association and former Pirate Party member Julia Reda of the EU Parliament, I think it’s fair to say that all interests are sufficiently dissatisfied with the outcome of that legislation that it may not prove terribly instructive to U.S. lawmakers. 

What I did find compelling in the hearing was summed up during the second panel by Jonathan Yunger, CEO of Millennium Media, who said in Q&A with Senator Coons that, two things he’d ask to see in the U.S. would be site blocking and felony streaming. And if I were placing bets on the recommendations that will ultimately follow this review, I predict that the committee will find these two proposals highly persuasive. Interestingly enough, site blocking does not require a radical revision of the DMCA (if it requires any), and felony streaming does not implicate DMCA revision at all. 

Site Blocking is Effective and Already Intended by DMCA

As highlighted by law Professor Justin Hughes in Panel I, it is clear from the language in Section 512(j) of the DMCA that Congress intended to empower a court to order a service provider, even though it is not a party to a litigation, to cease providing access to infringing material as a form of relief to a plaintiff. Under this section, if a rights holder can prove that a given site is dedicated to infringement, the court is supposed to be able to instruct a Google or a Time Warner to block access to that site or sites. Yet, as Hughes points out, this already extant section of the statute has hardly been used. 

Economics professor Michael Smith testified that we now have a sufficient volume of data which demonstrates that blocking multiple pirate sites has the positive effect of driving consumers to legal platforms.  Additionally, Professor Hughes enumerated several of countries where we can see that site blocking neither disrupts a functioning internet nor chills protected speech. “Given the widespread use of this enforcement tool in other democratic societies,” Hughes stated, “it may be worthwhile for the subcommittee to explore why §512(j) has not been utilized.” 

I imagine the IP Subcommittee will heed this recommendation to review the historic inefficacy of section 512(j). After all, more effective site blocking would actually address myriad piracy problems at the same time with no effect upon the public interest, or in any way meaningfully amending the safe harbor provisions for service providers. For instance, more sophisticated and insidious access to pirated material through set-top boxes called “Kodi boxes” would be mitigated by site blocking because these infringing apps, loaded on these boxes, search for titles of filmed entertainment stored on foreign pirate site servers. Consequently, site blocking should substantially reduce the incentive to get into the illegal streaming game through the “box” model and, therefore, alleviate some of the burden on federal law enforcement to investigate these enterprises.  

Why Has 512(j) (i.e. site blocking) Not Been Used?

I do not claim to know all the answers to that question, but at least part of the answer comes down to the fact that internet industry and “digital rights” activists have fought, in both the blogosphere and the courts, to avoid compliance with even court-ordered injunctions to remove  or block access to content. Most prominently, perhaps, was Google’s defiance of the Canadian Supreme Court, which ordered sites blocked as injunctive relief for plaintiff Equustek whose IP had been stolen by a party marketing counterfeits on the sites at issue.

Or to highlight just how entrenched the industry’s misguided sense of responsibility is in this regard, the subcommittee could review the defense and supporting amici in Hassell v. Bird, in which Yelp! argued that by complying with an injunction to remove material, which had been judged unlawful by a court, this would “harm due process.” This was a profoundly absurd claim to come from a “no-fault” third party responding to a court order to cease facilitating harm to a plaintiff. Due process does not a apply to an unnamed, no-fault party—except apparently within the twisted strands of logic peculiar to website operators, who have historically assumed that it is their right to host, link to, and even monetize anything that ends up on their platforms. 

Site operators and their supporters, like the EFF, PublicKnowledge, and, at times, the ACLU, have endeavored to tie both courts and public perception into knots over one of the most basic forms of justice—injunctive relief by unnamed third parties—and it seems that correcting this error (i.e. making Section 512(j) mean what it says) would be short work for legislators. 

Felony Streaming is Controversial for No Good Reason

As I say, I was also struck by Mr. Yunger asking for felony streaming as a solution to piracy, which does not in fact require revision to the DMCA, but rather a change to the criminal code. As discussed in this post about the indictments against the operators of Jetflicks, streaming a “public performance” of a copyrighted work is still a misdemeanor, despite the fact that it is exactly how large-scale piracy is achieved today. In fact, nothing in the old bootlegging model, which is a felony, could come close to illegally streaming a movie or TV show to tens of millions of consumers, occasionally even preempting the official release of the project.

“Under this system, criminal streaming piracy, no matter the dollar amount it involves or the number of works affected, is de facto treated as a lesser crime than the illegal downloading or reproduction of the exact same content.” –Register of Copyrights, July 2019–

Some fairly outlandish fear-mongering has been employed in opposition to felony streaming proposals over the years. By “over-criminalizing” unlicensed streaming, the critics say, good-faith site operators could wind up in jail due to error or the unlawful conduct of their users.  But this scare tactic is contradicted by a few important realities, not the least of which is that we do not generally see good-faith site operators charged with misdemeanors either. 

To be charged with criminal copyright infringement, a defendant must truly be engaged in copyright infringement as a business enterprise. Nothing about elevating enterprise-scale, unlicensed streaming to a felony would change the burden of proof for filing criminal charges; it merely puts teeth in the law as a deterrent against launching in this kind of operation. Further, elevating illicit streaming to a felony does not alter the liability protections for good-faith service providers. 

The same principles would still apply to the “safe harbor” provision established for good-faith providers whose users upload infringing material.  Having said that, however, the incentive narrative needs to change to apropos Mr. Yunger’s testimony that his company’s films, in one accounting, had been viewed over 110 million times on YouTube. So clearly good faith alone is not getting the job done. 

Meanwhile, as CreativeFuture reported in a recent blog post, a new operation called Plex appears to combine the “Kodi box” piracy streaming model with a Napster-like twist such that users can “share” libraries they store on Plex servers—particularly if those libraries comprise bootleg files. If Plex is intentionally facilitating large-scale infringement through streaming from its servers,* its defense against an infringement charge would presumably seek to hide behind the technicality that its users are “directing” the uploading of files to the server space under user control. Hence, by more robustly criminalizing the act of streaming public performances, this would seemingly close a DMCA loophole without actually revising the DMCA. 

With regard to considering both felony streaming and a review of 512(j), the IP Subcommittee should assess the amount of disinformation and flawed legal arguments that have been deployed on these topics by various parties in the internet industry. For the better part of the last two decades these companies have consistently behaved as though the original intent of DMCA was always that they should do exactly they want—even in defiance of court orders. The members of the committee know very well that nothing could be further from the truth.