Tag: Allen v. Cooper

Allen v. Cooper Revisited: Part II – That Damned Eleventh Amendment

(NOTE: This post relies on information presented in Part I.)

In my first post in this series, I tried to summarize (albeit in nearly 3,000 words) the reasons why the states, and arms of the states, may freely infringe intellectual property without fear of being sued for monetary damages. I referred to the Eleventh Amendment as a pain in the neck, but also mentioned that the man usually credited for its existence, Justice James Iredell, is an interesting figure. This is because I like stories about the conceptual dichotomies tugging at one another during the founding period of the United States, especially when those tensions are manifest in a single individual.

As a Justice of the Supreme Court, Iredell wrote the singular, dissenting opinion that resulted in the most acute expression of states’ rights in the Constitution. But he was also a passionate advocate of the federal plan at a time and place when the audacity of those men in Philadelphia, initially tasked with fixing the Articles of Confederation, was a source of considerable irritation among many Americans.

In July of 1788, when some 300 county delegates of the State of North Carolina met in Hillsborough to decide whether to join the ten states that had already ratified the Constitution, Iredell was among the minority of those who favored the plan of the Convention. In fact, most of North Carolina’s representatives were already so sure of their intent to reject the Union, that they moved to vote immediately on the matter and return home. And it was Iredell who rose to make an impassioned plea for a section-by-section debate on the text of the document. Acknowledging his inclination toward adoption, he declared …

“My constituents did me the honor to elect me unanimously, without the least solicitation on my part. They probably chose me because my sentiments were the same with their own. But highly as I value this honor, and much as I confess my ambition prompted me to aspire to it, had I been told that I should not be elected unless I promised to obey their directions, I should have disdained to serve on such dishonorable terms. Sir, I shall vote perfectly independent, and shall certainly avow a change of my present opinion, if I can be convinced it is a wrong one.”

So, after nearly three days of debate as to whether there should be a debate, Mr. David Caldwell rose near the start of Day Four to ask whence the Convention delegates derived the authority (i.e. the arrogance) to begin their preamble with We the people…. Iredell must have been among those who thought to himself, “This is going to be a long bloody meeting,” while patiently listening to Archibald Maclaine (who would later help draft the Bill of Rights) explain that if the Constitution were adopted, it would become North Carolina’s law as well, and thus, the citizens of the state would be represented by the words We the people. I mention this not only because it’s funny, but to emphasize the atmosphere of distrust that existed with regard to the allegedly insidious Constitution.

Throughout the substantive debate on the various articles and clauses, Iredell was, of course, not the only advocate of the federal plan. William Davie, who served as a delegate at Philadelphia, naturally argued the cause of ratification. But it is notable that Iredell, who, in February of 1790, will be nominated by Washington as one of the nation’s first Supreme Court Justices, consistently plays the role of interpreter at Hillsborough. He intermittently defends the principles of a contested paragraph or section, principally by explaining how the delegates who express concern have misread the meaning of the text. In short, Iredell emerges as the jurist in the room.

North Carolina ratified the Constitution on November 21, 1789, making it the twelfth state to join the Union, and, like the straggler Rhode Island, its delegates had principally delayed on the grounds that they wanted a bill of rights added to the general legislature. As many of us were taught in school, there were founders who argued that an affirmative statement of rights was dangerous because it meant that all rights not named were impliedly not protected. Iredell, a member of this latter camp; inveighed against a bill of rights, declaring …

“…when it is evident that the exercise of any power not given up would be a usurpation, it would be not only useless, but dangerous, to enumerate a number of rights which are not intended to be given up; because it would be implying, in the strongest manner, that every right not included in the exception might be impaired by the government without usurpation; and it would be impossible to enumerate every one.”

This was during the fairly heated debate on Article III, establishing the federal judiciary, which stoked the anxieties of many delegates, fearing that certain rights, like trial by jury, were not expressly guaranteed in the federal plan. Although the subject of state immunity from suit was not raised at Hillsborough, the issue of “diversity” was discussed. Article III, Section 2 contains what are known as the Diversity Clauses, which were meant to alleviate fears of “home-court advantage,” where state courts may be prejudiced against suits brought by residents of foreign states. Hence, the need for uniform (i.e. federal) remedies, which Iredell explained thus:

“A man in North Carolina, for instance, if he owed £100 here, and was compellable to pay it in good money, ought to have the means of recovering the same sum, if due to him in Rhode Island, and not merely the nominal sum, at about an eighth or tenth part of its intrinsic value. To obviate such a grievance as this, the Constitution has provided a tribunal to administer equal justice to all.”

If Iredell’s sentiments, which I have barely skimmed here, do not quite sound like a those of a man who would have asserted that Congress, under its Article I powers, could never have the authority to abrogate state immunity, this is because most evidence points to the conclusion that he believed no such thing. In fact, according to Justices Souter and Stevens, in their dissents in Seminole Tribe, Iredell does not even articulate this view in his dissent in Chisolm v. Georgia, which provided the blueprint for the Eleventh Amendment. Stevens writes …

“Justice Iredell relied on the text of the Judiciary Act of 1789, not the State’s assertion that Article III did not extend the judicial power to suits against unconsenting States. For Justice Iredell, then, it was enough to assume that Article III permitted Congress to impose sovereign immunity as a jurisdictional limitation; he did not proceed to resolve the further question whether the Constitution went so far as to prevent Congress from withdrawing a State’s immunity.”

What I find compelling about the Stevens and Souter dissents in Seminole (especially Souter’s) is the scope and depth of historical evidence presented to support the conclusion that the majority erred in Seminole, when it held that the Eleventh Amendment bars Congress from abrogating state immunity under its Article I powers. First, Souter maintains, that the majority rested its opinion on a flawed reading of a case from 1890 (Hans v. Louisiana), about which he writes …

“The Court [in Hans] elected, to recognize a broader immunity doctrine, despite the want of any textual manifestation….Because no federal legislation purporting to pierce state immunity was at issue, it cannot fairly be said that Hans held state sovereign immunity to have attained some constitutional status immunizing it from abrogation….the Court today simply compounds the already serious error in taking Hans the further step of investing its rule with constitutional inviolability against the considered judgment of Congress to abrogate it.

Souter presents a compelling, in-depth narrative to argue that interpreting the Eleventh Amendment as blanket immunity for states is untethered from its intent in 1795 and more broadly asserts “that American political thought [at the founding period] had so revolutionized the concept of sovereignty itself that calling for the immunity of a State as against the jurisdiction of the national courts would have been sheer illogic.”

More specifically, Souter cites Justice Marshall in Cohens v. Virginia (1821), stating, “The point of the Eleventh Amendment, according to Cohens, was to bar jurisdiction in suits at common law by Revolutionary War debt creditors, not ‘to strip the government of the means of protecting, by the instrumentality of its Courts, the constitution and laws from active violation.’”

Like many of you, I finally saw Hamilton over the Independence Day weekend on Disney+, and I was very amused by the portrayal of Jefferson as a rock-star dilettante, especially when he debates, in rap-battle-style, Hamilton’s plan to assume state debts and establish a national bank. War debts were a profoundly sensitive matter at the time, especially when the debtor was a state that owed money to a citizen of another state, as was the case in Chisolm (and again in Hans after the Civil War). Hence, there is ample historic evidence to recommend Souter’s interpretation of the intent of the Eleventh Amendment.

Souter and Stevens maintain that the Eleventh Amendment was narrowly written to “constrict the scope” of the Diversity Clauses of Article III. In a nutshell, if a plaintiff’s ONLY plea to trial in federal court, when suing a state, is fear of bias, the amendment prohibits the lawsuit. As Souter writes, “The best explanation for our practice belongs to Chief Justice Marshall:  the Eleventh Amendment bars only those suits in which the sole basis for federal jurisdiction is diversity of citizenship.” [Emphasis added]

And perhaps most pointedly, Souter invokes Iredell in Chisolm, stating “[t]he United States are sovereign as to all the powers of government actually surrendered: each State in the Union is sovereign, as to all the powers reserved.” So unless some scholar wants to unravel the body of evidence Souter brings to the table, one must accept his argument that nowhere in the record is there any evidence that the intent of the framers was to “affirmatively guarantee state sovereign immunity against any congressional action to the contrary.”

Despite the fact that the Souter dissent provides a far more scholarly case for its interpretation of the Eleventh Amendment than the reasoning presented by the majority in Seminole, the former is not the holding that prevails. Anyone who may have grounds to bring civil federal claims against a state, or state actor, is barred from doing so in nearly all instances. Not just copyright and other intellectual property complaints.

As described in this post, there are some quirky coincidences associated with the Allen v. Cooper case, and among these is the fact that this epic tale of state sovereign immunity begins and ends (for now) in North Carolina. After all, documentary filmmaker Rick Allen is a citizen of North Carolina, who sued his home state for infringement of his audio-visual works. So, a plain reading of the Eleventh Amendment might lead one to think that this automatically qualifies him to sue, given the textual certainty of the words, “…against one of the United States by citizens of another state.” Yet, it was the Hans decision—130 years ago—that magically erased the citizens of another state condition and, according to Souter’s dissent in Seminole, erased all historic context to go with it.

Allen v. Cooper Revisited Part I: State of Play

Ever since the case Allen v. Cooper first appeared on my radar, and especially after the Supreme Court handed down its decision in late March, I have been admittedly a wee bit obsessed with the subject of state sovereign immunity (a.k.a. Eleventh Amendment immunity). What is Eleventh Amendment immunity? In a nutshell, it means you cannot sue a state (including arms of the state, like universities) in federal civil cases. So, if you like tilting at windmills, and mucking about in the dusty attics of American law, as I do, perhaps you will indulge the series of posts I plan to write on this difficult—and what may ultimately prove unresolvable—constitutional challenge to the protection of intellectual property. 

As reported in the post I wrote following the decision in Allen v. Cooper, the majority and concurring opinions, written by Justices Kagan and Breyer respectively, came unusually close to expressing regret that precedent led the Court to the only decision available—affirming that states are free to infringe the copyrights of private citizens and entities with impunity.

Further, the Court all but nudged Congress to have another go at resolving the statutes written in 1990 to intentionally abrogate state immunity in intellectual property suits. “[A] tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice,” writes Justice Kagan for the majority. And in his concurrence, Justice Breyer observed, “Whether a future legislative effort along those lines will pass constitutional muster is anyone’s guess. But faced with the risk of unfairness to authors and inventors alike, perhaps Congress will venture into this great constitutional unknown.” Only Justice Thomas, in his concurring opinion, averred, on separation grounds, that the Court has no business urging Congress to do anything.

In response to the Allen decision, Senators Tillis and Leahy of the Judiciary Committee, on April 28th, sent letters to the U.S. Patent and Trademark Office and the U.S. Copyright Office, stating their concern “about the impact this may have on American creators and innovators.” The letters ask both agencies to “research this issue to determine whether there is sufficient basis for federal legislation abrogating State sovereign immunity….”

Beyond the fact that I personally support the rights of authors and am, therefore, opposed to creative works being freely pirated by state entities, I find the challenge of overcoming Eleventh Amendment immunity an intriguing subject on its own. Perhaps most especially right now, when overlapping, turbulent events in the United States have, in various ways, highlighted the federalist model of the nation.

The concept of state sovereignty, embodied in the Tenth Amendment, though traditionally viewed as a favorite principle of conservatives, has lately garnered considerable attention from a broader swath of the electorate. With a President who likes to claim he has “absolute authority” to do just about anything his thumbs can tweet, we have lately been served a steady diet of legal analyses on the theme of federal versus state law.

So, because the response to Allen reveals a rare moment of synergy, when both the Court and Congress seem to want to prohibit the States from freely infringing intellectual property, understanding why this result was not achieved by three modern laws offers a unique, if frustrating, glimpse into the complex underpinnings of our federal system.

How We Got Here

Article I section 8 of the Constitution lists the plenary powers of Congress, and among these, paragraph 8 (the IP clause) grants the power to enact patent and copyright laws. As articulated in Federalist 43 (Madison), it was anticipated that uniform, federal IP laws would best serve the interests of the new nation; and although there is little record of any controversy about that principle at the founding period, pre-emption of state copyright laws did not occur as a practical reality until the 1976 copyright act.

Meanwhile, an inherent tension was already present with the passage of the first copyright law of 1790 because the jurisdictions for litigation would eventually (i.e. beginning in 1819) be the federal courts. And one aspect of the Constitution that was very controversial at the founding period was the establishment of the federal court system in Article III. Anti-federalists and skeptics of the Plan of the Convention, already anxious about the uncharted boundaries between states’ rights and the new central government, were especially wary that the federal courts might swallow a state’s sovereignty to make and enforce its own laws.

With the Tenth Amendment in the Bill of Rights of 1791, state sovereignty was affirmed as a general principle. But four years later, the South Carolina estate of one Alexander Chisolm filed suit against the State of Georgia, seeking monies owed for materiel provided during the Revolution. When the Supreme Court, in a 4-1 decision, found for Chisolm, it was a big We told you so moment for the aforementioned skeptics of the federal court system. Consequently, the lone dissent in Chisolm v. Georgia, written by Justice James Iredell, served as the predicate for the Eleventh Amendment, passed in 1795. It says:

The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

More about Justice Iredell—I think he’s an interesting cat—in a subsequent post. But for now, let’s just say that the Eleventh Amendment can be a troublesome little bug in the Constitution, and not only for IP law. If Congress can pass laws under Article I that are only justiciable in federal court, but states are immune from suit in federal court, a natural question any modern plaintiff might ask is whether contemporary justice is being confounded by antiquated precedent. And there’s an extent to which the answer to that appears to be, Yes, it is.

Not only is the historic lineage of sovereign immunity (i.e. English law dating back several centuries) anathema to democracy, but according to scholar John V. Orth, U.S. state immunity is a vague doctrine at best. He writes, “…the search for the original understanding on state sovereign immunity bears this much resemblance to the quest for the Holy Grail: there is enough to be found so that the faithful of whatever persuasion can find their heart’s desire. And … the object of the search may prove equally illusory.”

That quote was cited in the U.S. Copyright Office Report of 1988, presented to Congress by then Register Ralph Oman, examining the issue of state infringements and Eleventh Amendment immunity. At that time, five district courts had held that the copyright law did not anywhere clearly state that Congress expressly intended to abrogate state immunity from claims of copyright infringement.

Shortly after that USCO report was published, the Supreme Court, in the case Pennsylvania v. Union Gas, held that Congress, pursuant to its rights under the commerce clause in Article I, had the authority to abrogate state immunity. Based largely on the weight of that decision, Congress passed the Copyright Remedy Clarification Act (CRCA) of 1990, along with its sibling laws the Patent Reform Act (PRA) and the Trademark Remedy Clarification Act (TRCA). This trio of IP laws responded to the obstacles presented in those prior cases during the 1980s by expressing Congress’s clear intent to abrogate immunity in suits pertaining to its Article I powers under paragraph 8. But …

In 1996, in the case Seminole Tribe v. Florida, the majority opinion written by Justice Rehnquist overturned Union Gas, stating, “In overruling Union Gas today, we reconfirm that the background principle of state sovereign immunity embodied in the Eleventh Amendment is not so ephemeral as to dissipate when the subject of the suit is an area, like the regulation of Indian commerce, that is under the exclusive control of the Federal Government.” In other words, Seminole Tribe held that Article I powers are not sufficient grounds for Congress to abrogate state immunity, which meant that the three IP clarification laws of 1990 now rested on shaky ground.

In Justice Stevens’s dissent in Seminole Tribe, he argued that in overturning Union Gas, the Court “…prevents Congress from providing a federal forum for a broad range of actions against States, from those sounding in copyright and patent law, to those concerning bankruptcy, environmental law, and the regulation of our vast national economy.” Then, in refuting the majority’s interpretation of Chisolm, he added, “For this Court to conclude that time-worn shibboleths iterated and reiterated by judges should take precedence over the deliberations of the Congress of the United States is simply irresponsible.”

What About Due Process?

“States…have a ‘specific duty’ not to infringe that [which] ‘is assigned by law’ and upon which ‘individual rights depend.’ One might therefore expect that someone injured by a State’s violation of that duty could ‘resort to the laws of his country for a,’ remedy, especially where, as here, Congress has sought to provide one.”  – Justice Breyer, Allen v. Cooper, citing Marbury v. Madison.

Three years after Seminole, in a pair of decisions known as the Florida Prepaid cases, both the PRA and the TRCA failed, subject to the Union Gas precedent that Article I powers were no basis for Congress to abrogate State immunity. But, also in Florida Prepaid, the question was presented as to whether Congress has the right to abrogate immunity pursuant to its powers under Section 5 of the Fourteenth Amendment, which says that Congress may pass laws necessary to protect citizens’ rights under Section 1 of that amendment, including this right: “nor shall any state deprive any person of life, liberty, or property without due process of law.”

So, again, any reasonable person might ask, if an IP plaintiff can only pursue a complaint in federal court, and state immunity bars access to that court, then isn’t the claimant being denied due process? Well ….  Justice Rehnquist, in considering whether other avenues of due process, like tort or unfair competition, might be available state court remedies, referred to the unlikely prospect of shoehorning IP complaints into those other legal doctrines as “inconvenient” for a plaintiff to attempt.

Further, it had been observed by the Copyright Office and others that even if those state remedies were viable, the resulting caselaw would be a thicket of common law IP precedents, growing like legal kudzu atop the already complex hedgerows dividing the federal circuits. But this difficulty Rehnquist dismissed as an “Article I problem.” The same Article I he opined does not give Congress the power to abrogate state immunity. Anyone who’s ever read Joseph Heller’s Catch 22 may find this passage in Seminole agonizingly familiar. 

Concurrent with the Florida Prepaid decisions, the case Alden v. Maine put another nail in the coffin of Congress’s Article I right to abrogate immunity and, significantly, reiterated that state sovereign immunity was not created by the Eleventh Amendment, but was affirmed by it. That seemingly moot distinction is actually a matter of considerable debate, about which I refer you to the “Holy Grail” comment made by Mr. Orth.

After Alden, a 2000 copyright case, in which author Denise Chavez’s work was infringed by the University of Houston, the Fifth Circuit dismissed on immunity grounds and officially doomed the CRCA to the same fate as the PRA and the TRCA.  In fact, after Chavez v. Arte Publico Press, many experts were surprised that the Supreme Court granted cert in Allen v. Cooper, assuming the questions to be presented were already answered and, for rightsholders, a dead issue. Allen presented a clause-by-clause argument, asserting that the IP clause is distinguishable from other Article I powers of Congress, and although that argument failed, I will discuss it a little further in another post in this series.  And that brings us to where things stand today.

Overcoming Eleventh Amendment Immunity

In 2003, in response to the 1990s defeats of the CRCA et al, Congress again took up the issue, seeking various rationales to abrogate immunity for IP claims against states. Among the arguments presented, one that should be especially irritating to creators, is the fact that a state may own intellectual property, and file suit for infringement, while it remains shielded from litigation, leaving it free to infringe. At that time, this injustice was seen as a possible avenue—to deny states the ability to litigate IP claims unless they waived their immunity accordingly. This was, and remains, a non-starter due to the strenuous objections of state Attorneys General.

Today, despite the Court’s apparent dismay with its conclusion in Allen, the so-called roadmap it drew Congress for abrogating immunity is actually a very narrow path through some pretty dense woods. Based solely on the Fourteenth Amendment, section 5 premise, the Court held that the only foundation for abrogating immunity will have to be based on a preponderance of evidence that there is a pattern of “intentional and reckless” infringement by state entities. This is no small feat. For one thing, nobody can say how much evidence of state infringement would constitute a pattern compelling enough for the Court to sustain abrogation. And the only way to find out is for Congress to pass new laws, and some party to litigate against a state all the way to the Supreme Court.

Further, the evidence needed to show a pattern of “intentional and reckless” infringement may not be available, particularly because the largest entities with the capabilities to obtain that data may not have it anymore. Chris Mohr, VP for Intellectual Property and General Counsel at Software & Information Industry Association, explains:

“We still get whistleblower reports of state entities that infringe, but we haven’t been tracking that information for 20 years because Allen reached the same end result as the Fifth Circuit did in 2000 [in Chavez].  As a result, it didn’t make sense to track and organize that information in the context of our enforcement program.  But that’s not to say this problem has gone away, and many of our members are concerned.  COVID caused an increase in the licensing of software and materials for distance learning, creating exposure for many of our members.  One of them is now in litigation against the state of Nebraska for copyright infringement.”

I will interject a comment here to say that the status quo seems wildly out of whack with fairness and the purpose of U.S. intellectual property law. It should not be the case that individual authors, exercising their constitutional rights as individuals, should have the burden of demonstrating that they are members of a protected class, merely because the alleged infringer happens to be a state.

On the contrary, a single state infringer, like a university or museum, can cause considerable harm to a single author by means of a single act of infringement. And copyright law is intended to remedy that one infringement for that one author. So not only might the scope and frequency of state infringements prove difficult to ascertain, it is truly unfortunate that it is necessary at all. The Eleventh Amendment leaves the individual author as a David, sans slingshot, facing a multitude of Goliaths.

So, this is an odd moment. The Supreme Court and Congress both seem to want the law to work differently than it does. But an amendment passed in 1795, the foundation of which is the subject of endless, circular debate, serves as a major obstacle to what most people would probably consider basic fairness for rightsholders, and beyond.

To date, almost the only successful abrogation of state immunity, pursuant to the Fourteenth Amendment, has been in the service of major civil rights disputes with states, like the Voting Rights Act (1965). Because that history is intertwined with racial disparity and the original predicate for the Fourteenth Amendment, my friend Steve Tepp is inclined to say that “So far, it seems that we can only abrogate sovereign immunity regarding any issue over which we fought a civil war.”  That’s setting the bar rather high I would say. But that’s how things stand.

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