Stop the States’ Copyright Plunder

By Adam Mossoff

If you took a photo and Harvard put it on its website without permission, you could sue the university for copyright infringement and win. Not if the University of Texas did the same thing. The Supreme Court has a chance to end the double standard that allows state institutions to run roughshod over copyrights, the legal fountainhead of American creativity.

On Tuesday the justices hear oral arguments in Allen v. Cooper. Videographer Frederick Allen documented the excavation of Blackbeard’s famous pirate ship, the Queen Anne’s Revenge. The 1718 shipwreck was discovered off the North Carolina coast in 1996.

Blackbeard isn’t the only pirate in this tale. The North Carolina Department of Natural and Cultural Resources published Mr. Allen’s works on its website despite signing an agreement recognizing him as the copyright holder. So he sued the state for infringement. The trial court allowed the suit to go forward, but the Fourth U.S. Circuit Court of Appeals threw out Mr. Allen’s case, holding that states can’t be sued for copyright infringement because of their sovereign immunity under the 11th Amendment.

But the Founders intended that states be bound by the same copyright laws as individuals and private organizations, and Congress recognized the problem of state copyright piracy and enacted the Copyright Remedy Clarification Act of 1990 to abrogate state sovereign immunity and allow claims such as Mr. Allen’s.

Article I of the Constitution includes among Congress’s enumerated powers the authority “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.” This provision was adopted without debate at the Constitutional Convention and is the only place in the unamended Constitution of 1787 in which the word “right” appears.

The Founders were also clear that copyright protection could not be left to the states. James Madison wrote in Federalist No. 43 that “states cannot separately make effectual provisions” for copyrights given different state laws covering works sold nationwide. The “utility” of securing under federal law a “right of common law” in copyright “will scarcely be questioned,” Madison argued—very strong language in the context of a hot debate over the scope of federal powers.

It is good policy to recognize the supremacy of federal copyrights over unrestricted and unaccountable state officials. States have long benefited from federal copyright protection of their employees’ work. Public universities like Texas claim copyright in the photos, articles and other materials created under their auspices.

Coincidentally, the justices will hear another copyright case next month, Georgia v. Public.Resource.Org, in which a state sued a private organization for infringement. Public.Resource.org published Georgia’s official code of annotated laws, which includes summaries of judicial decisions and other officials’ legal opinions, citations to law journal articles, and editorial notes by the publisher authorized by the state to publish the annotated laws. Georgia claims the same legal protections that North Carolina is denying Mr. Allen for his creative endeavors. Georgia has filed a friend-of-the-court brief on North Carolina’s side in the Allen case.

Over the past two decades, several other federal appeals courts have also struck down the Copyright Remedies Clarification Act on 11th Amendment grounds. That has led to a massive increase in state appropriation of copyrighted works. Mr. Allen is one of hundreds of victims of state piracy. The Supreme Court should rule definitively that the Copyright Remedy Clarification Act is a legitimate exercise of Congress’s enumerated powers, which trumps state sovereign immunity under the 11th Amendment.

If the justices decide against Mr. Allen, Congress can still act. It can pass new legislation meeting the Supreme Court’s standards for constitutionality—or at least requiring states to waive their sovereign immunity as a condition for receiving the continued benefit of federal copyright protection.