Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 1: A copyright clash before the Supreme Court did state power
Speaker 1: against public access in a dispute over whether the State
Speaker 1: of Georgia can copyright it's annotated legal code. During oral arguments,
Speaker 1: Justice Neil Gorsuch posed the question at the heart of
Speaker 1: the issue, why would we allow the official law enacted
Speaker 1: by a legislature approved equivalent of being approved by the judge?
Speaker 1: And annotations? As Justice Ginsburg indicated, why would we allow
Speaker 1: the official law to be hidden behind a paywall? Joining
Speaker 1: me as intellectual property litigator Terrence Ross, a partner at
Speaker 1: Captain Nuten Rosenman. So this is a case bearing the
Speaker 1: caption Georgia versus Public Resource Org, Inc. And involved an
Speaker 1: administrative body within the State of Georgia government called the
Speaker 1: Georgia Code Revision Commission And the Georgia Code Revision Commission
Speaker 1: is passed with collecting law is that the state legislature
Speaker 1: in Georgia passes and publishing them in some sort of
Speaker 1: organized way. So this commission is the official publisher of
Speaker 1: the official Code of Georgia annotated. Now it's important to
Speaker 1: explain what an annotated code is in most states and
Speaker 1: the federal government, the law is published as it comes
Speaker 1: out of the legislative body. It is simply organized within
Speaker 1: a code. It's given section numbers and chapter or title
Speaker 1: numbers so that people can easily find what they need
Speaker 1: to refer to. However, in a handful of states, such
Speaker 1: as Georgia, there are annotated official codes, and by annotated
Speaker 1: we mean yes, the language of the law that was
Speaker 1: passed is there, but in addition, there will be some
Speaker 1: sort of commentary that immediately follows and applies to each section. So,
Speaker 1: for example, it could say that this section of the
Speaker 1: law was passed by the state legis lature in order
Speaker 1: to amend another section that previously existed. It's almost like
Speaker 1: a historical footnotbody, but it can encompass enormous range of
Speaker 1: informational material, and that becomes important here. So what happened
Speaker 1: is that a public interest organization called public Resource dot
Speaker 1: org went out and bought the entire current official Code
Speaker 1: of Georgia annotated, many many volumes, at a very significant
Speaker 1: cost thousands of dollars. They then digitalized every page of
Speaker 1: the official Code to george Annotated, and they posted it
Speaker 1: on a website where they made it available for free
Speaker 1: to anyone who wanted to read the Law of Georgia.
Speaker 1: Fedlis to say that Georgia Could Revision Commission was a
Speaker 1: little bit upset about this because they have a copyright
Speaker 1: in the Official Code of Georgia annotated, and so they
Speaker 1: brought a copyright lawsuit against Public Resource Order alleging infringe
Speaker 1: it through the publication on Moss of the entire code
Speaker 1: on the Internet. So it seems like they have a
Speaker 1: good claim. What's the issue? So the issue is whether
Speaker 1: or not this Georgia Code Revision Commission is an author
Speaker 1: within the meaning of the Copyright Act such that it
Speaker 1: can actually own a copyright in the Official Code of
Speaker 1: Georgie annotated and therefore be a plaintiff to enforce copyright
Speaker 1: against infringers. And the Eleventh Circuit ruled that the Georgia
Speaker 1: Code Revision Commission was not the author of the Official
Speaker 1: Code of george annotated and therefore could not take out
Speaker 1: a copyright in it and could not bring a copyright
Speaker 1: infringement lawsuit against Public Resource dot Org. So in the decision,
Speaker 1: could the justices make a distinction between the official law
Speaker 1: and the commentaries there is case law out there in
Speaker 1: which attempts have been made to copyright purely the statutory
Speaker 1: enactments without any comment, and those cases uniformly say that
Speaker 1: that's not allowed. So the fact that this is an
Speaker 1: annotated code makes it different, and which is why the
Speaker 1: Supreme Court accepted this case in order to lend some
Speaker 1: clarity in this area as to that particularly distinction. Now,
Speaker 1: the court below, in what I thought was one of
Speaker 1: the best opinions in a copyright case I've read in
Speaker 1: some time. But I praise yes it is Judge Marcus
Speaker 1: who wrote the decision below, wrote a decision that every
Speaker 1: American should read. Just quite simply. It is both elegant
Speaker 1: and profound and goes to the nature of what we
Speaker 1: are all about as Americans. Judge Marcus says, and I'm
Speaker 1: quoting here, the people are the constructive authors of official
Speaker 1: legal promulgations of government that represent an exercise of sovereign authority.
Speaker 1: And because they are the authors, the people are the
Speaker 1: owners of these works, meaning that the works are intrinsically
Speaker 1: public domain material and therefore copyrightable. He's laying down a
Speaker 1: line in the sand that says, I don't care what
Speaker 1: excuse you have for copyrighting the law. You can call
Speaker 1: it an annotated work, the commentary on the work, but
Speaker 1: you cannot take away the right of the people to
Speaker 1: unfettered access to the law. It is a very very
Speaker 1: important decision, one that carries great consequence beyond copyright and
Speaker 1: goes to the heart of the American experiment, which is
Speaker 1: who owns the law? Who ultimately is the sovereign authority?
Speaker 1: And Judge Marcus includes that the people are the ultimate sovereigns,
Speaker 1: not the legislature and certainly not the Georgia Code Revision Commission,
Speaker 1: and therefore this is not copyrightable material. Coming up on
Speaker 1: Bloomberg Law Blackbeard Ship at the Supreme Court. You're listening
Speaker 1: to Bloomberg Law with June Grozzo from Bloomberg Radio. It's
Speaker 1: a case of video piracy involving the famous pirate Blackbeard
Speaker 1: Ship three centuries after that ship was wrecked off the
Speaker 1: coast of North Carolina. And even though pirates don't care
Speaker 1: much about property rights, the documentary filmmaker who's accusing North
Speaker 1: Carolina of pirrating his footage of the wrecked ship, certainly does.
Speaker 1: There was little mention of black Beard during the Supreme
Speaker 1: Court arguments over the alleged copyright infringement. The justices were
Speaker 1: more concerned with North Carolina's argument of state sovereign immunity.
Speaker 1: Justice Stephen Brier question whether sovereign immunity would let a
Speaker 1: state profit unfairly at the expense of creators. What the
Speaker 1: state decides to do with its own website charging five
Speaker 1: dollars or something is to run rocky uh Mrs Marvel whatever?
Speaker 1: Uh spighter man and uh perhaps groundhowk day? All right? Now?
Speaker 1: Great idea several billion dollars flows into the treasury. I've
Speaker 1: been talking with intellectual property litigator Terence ross a partner
Speaker 1: Captain Uten Rosenman. So Terry tell us about this pirate's tale.
Speaker 1: So Mr Allen, who is the purported copyright owner, specializes
Speaker 1: in searching for and exploring underwater shipwrecks, and in nine
Speaker 1: six he obtained a permit from the state of North
Speaker 1: Carolina to explore for specifically pirate shipwrecks off the coast
Speaker 1: of North Carolina. And what makes this sort of interesting
Speaker 1: case is that he's the person who eventually found the
Speaker 1: famous pirate ship used by Blackbeard. If you were called
Speaker 1: Blackbeard was an Englishman by the name of Edward Teach,
Speaker 1: who for pirate purposes, went by the name Blackbeard. In
Speaker 1: seventeen seventeen, he captured a French merchant ship called the
Speaker 1: Queen and Revenge. He refitted it as a warship and
Speaker 1: used it to terrorize ship being in the coastal regions
Speaker 1: between North Carolina and Florida for about a year. And
Speaker 1: then he was cruising off the coast of Beaufort, North
Speaker 1: Carolina in seventeen eighteen and managed to run in aground.
Speaker 1: He abandoned the ship. It eventually sank, and the area
Speaker 1: they're off the coast of Beaufort apparently is constantly shifting
Speaker 1: and changing, so the ground he ran the ship onto
Speaker 1: sort of disappeared. The ships were disappeared, people lost track
Speaker 1: of where it was, and Mr Allen was the one
Speaker 1: who rediscovered it. Now. As part of his explorations, Mr
Speaker 1: Rout takes very detailed videography and underwater still photography, and
Speaker 1: that's where this case starts. As part of the permitting
Speaker 1: process from the State of North Carolina, Mr Allen had
Speaker 1: to agree to submit the film and photographs he was
Speaker 1: taking to the state, and the state had certain rights
Speaker 1: to use it, not unlimited rights, but certain rights to
Speaker 1: use it. The long and short of it is as
Speaker 1: astral and took the position that the state North Carolina
Speaker 1: was abusing its rights and making use of his video
Speaker 1: footage in an unauthorized way, and he brought a copyright lawsuit.
Speaker 1: He had copyrighted all of the film and photographs with
Speaker 1: the United States Copyright Office, and so he was entitled
Speaker 1: to take action in a court of law to defend
Speaker 1: his entitlement to those copyrights, and he did so. Tell
Speaker 1: us about the legal issue here. The legal issue is
Speaker 1: one of sovereign immunity. In English law countries, the sovereign
Speaker 1: is generally considered to be immune from lawsuit unless the
Speaker 1: sovereign has expressly agreed that citizen can bring a suit
Speaker 1: against the sovereign for some specific purpose. And so in
Speaker 1: this country, both the federal government and the states have
Speaker 1: passed legislation that allows individual citizens in certain circumstances to
Speaker 1: bring suit against them. For example, if you slip and
Speaker 1: fall on federal land or state land and there's some
Speaker 1: negligence on the part of the federal government or the
Speaker 1: state government. Almost every jurisdiction as a piece of legislation
Speaker 1: that allows that sort of tort action to be filed.
Speaker 1: The key here is though, that the sovereign has to
Speaker 1: have allowed the lawsuit. So the defense made by the
Speaker 1: state in North Carolina was the officials of the government
Speaker 1: of North Carolina are entitled to sovereign immunity and they
Speaker 1: cannot be suited for copyright infringement. And that's the crux
Speaker 1: of the legal issue that makes it sound like it's
Speaker 1: an open and shut case. What's the problem. Copyright lawsuits
Speaker 1: against state officials is not something that Mr Allen dreamed
Speaker 1: up for the first time. They have been around for
Speaker 1: decades and they have typically been dismissed because the state
Speaker 1: officials are protected by their state sovereign munity laws. This
Speaker 1: led historically to some really egregious cases in which there
Speaker 1: was blatant, knowing copyright infringement by state officials in order
Speaker 1: to profit off of someone else's work. And Congress finally said,
Speaker 1: you know, enough is enough, and they passed a piece
Speaker 1: of legislation called the Copyright Remedy Clarification Act of in
Speaker 1: that Congress used its power under Article one of the
Speaker 1: United States Constitution, specifically the power to enact and enforce
Speaker 1: copyright laws on that basis, they abrogated sovereign immunity for
Speaker 1: states and for state officials or infringement of copyright, and
Speaker 1: it could not have been more clear. The legislation says,
Speaker 1: any state, any instrumentality of a state, and any officer
Speaker 1: employee of a state, or instrumentality of state acting in
Speaker 1: his or her official capacity shall not be immune under
Speaker 1: the eleventh Amendment of the Constitution of the United States
Speaker 1: warrender and any other doctor in a sovereign immunity from
Speaker 1: suit in a federal court by any person, including any
Speaker 1: governmental or non governmental entity, for a violation of any
Speaker 1: of the exclusive rights of a copyright owner. Congress wanted
Speaker 1: to end sovereign immunity for states and state officials for
Speaker 1: copyright and infringement, and they thought they had done so
Speaker 1: in the Copyright Remedy Clarifification Act. And so when in
Speaker 1: the District court in North Carolina, the state defended by
Speaker 1: saying its officials had sovereign immunity could not be sued
Speaker 1: for copyright infringement, Mr Allen responded by saying, no, no, no,
Speaker 1: that is incorrect. You lost your sovereign immunity back in
Speaker 1: as a result of Congress's enactment of Copyright Remedy Clarification Act.
Speaker 1: What did the justices seem mainly concerned about during oral
Speaker 1: arguments and any inclination as to how they'll rule. The
Speaker 1: argument made by the State of North Carolina was that
Speaker 1: the Copyright Remedy Clarification Act was not a valid exercise
Speaker 1: of Congress's power to abrogate sovereign immunity. And the reason
Speaker 1: they said that was that Congress had expressly, in passing
Speaker 1: that act, pointed to Article one of the Constitution as
Speaker 1: the basis for their power to do it. After passage
Speaker 1: of the Copyright Remedy Clarification Act, the Supreme Court in
Speaker 1: another case called Seminal Tribe in connection with waiver of
Speaker 1: sovereign immunity for patent infringement, the Supreme Court had said
Speaker 1: that Article one does not provide the basis upon which
Speaker 1: you can abrogate sovereign immunity for a state. And so
Speaker 1: North Carolina came in and said, you know, based on
Speaker 1: the Spring Court Seminal Trit case, which had to do
Speaker 1: with patents, not copyrights, but the reasoning should apply equally
Speaker 1: to copyrights, and therefore Congress's reliance upon Article one of
Speaker 1: the Constitution is misplaced. The law is invalid. Now, the response,
Speaker 1: in a response that seemed to gain some traction with
Speaker 1: the justices at or argument, the response from Mr Allen's
Speaker 1: attorneys was that section five of the Fourteenth Amendment would
Speaker 1: provide this power to abrogate sovereign immunity. Now, the tricky
Speaker 1: part of the whole thing is that Congress never mentioned
Speaker 1: Section five of the Fourteenth Amendment as the basis for
Speaker 1: passing this law. It expressly relied upon Article one of
Speaker 1: the Constitution. I think that what the Court will do,
Speaker 1: because this tends to be a very pragmatic court with
Speaker 1: respect the copyright matters, is to say that it does
Speaker 1: not matter that they didn't mention section five or the
Speaker 1: fourteenth Amendment. Otherwise, and this is the sense you got
Speaker 1: from or argument. Otherwise, the Court would be invalidating the law,
Speaker 1: sending it back to Congress, and Congress would simply have
Speaker 1: to go to the motion of re enacting it, but
Speaker 1: this time mentioning the fourteenth Amendment. And that seems like
Speaker 1: sort of a complete waste of everybody's time. And this
Speaker 1: is a pragmatic Supreme Court in copyright matters, and so
Speaker 1: I think the sense from the or argument was why
Speaker 1: go through that charade of requiring Congress to re enact
Speaker 1: the exact same law and this time site to the
Speaker 1: Fourteenth Amendment, When we the Supreme Court can simply say
Speaker 1: it was a valid exercise of Congressional authority under the
Speaker 1: fifth section of the Fourteenth Amendment. How important will this
Speaker 1: ruling be? It seemed as if some of the justices
Speaker 1: were skeptical about how widespread this problem was. That is
Speaker 1: absolutely correct. There was a sense on the Court that
Speaker 1: there is not a lot of copyright infringement by the states.
Speaker 1: I think the problem is at that point of view
Speaker 1: misses the historical perspective of here. But the fact is
Speaker 1: Congress past the Copyright Remedy Clarification because there had been
Speaker 1: a spate of copyright infringements that were blatant and egregious
Speaker 1: by states and state officials. And the fact that there
Speaker 1: has been so little state copyright infringement since that time
Speaker 1: merely goes to justify passage of the Copyright Remedy Clarification Act.
Speaker 1: In the first place, it was successful. It stopped state
Speaker 1: actors infringing upon copyright owners rights. And I think at
Speaker 1: the end of the day, the Supreme Court will come
Speaker 1: to the conclusion that the reason you've seen so little
Speaker 1: copyright infringement by state officials of late is because of
Speaker 1: this law, and that if they invalidate it, there will
Speaker 1: be this gap during which the lack of waiver of
Speaker 1: solid immunity will be exploited by state officials. That's Terence
Speaker 1: ross A partner Captain uten Rosenman, and that's it for
Speaker 1: this edition of Bloombard Law. I'm June Grosso. Thanks so
Speaker 1: much for listening. H