WEBVTT - Blackbeard’s Shipwreck and Video Piracy Claims

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<v Speaker 1>This is Bloomberg Law with June Grosso from Bloomberg Radio.

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<v Speaker 1>A copyright clash before the Supreme Court did state power

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<v Speaker 1>against public access in a dispute over whether the State

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<v Speaker 1>of Georgia can copyright it's annotated legal code. During oral arguments,

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<v Speaker 1>Justice Neil Gorsuch posed the question at the heart of

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<v Speaker 1>the issue, why would we allow the official law enacted

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<v Speaker 1>by a legislature approved equivalent of being approved by the judge?

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<v Speaker 1>And annotations? As Justice Ginsburg indicated, why would we allow

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<v Speaker 1>the official law to be hidden behind a paywall? Joining

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<v Speaker 1>me as intellectual property litigator Terrence Ross, a partner at

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<v Speaker 1>Captain Nuten Rosenman. So this is a case bearing the

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<v Speaker 1>caption Georgia versus Public Resource Org, Inc. And involved an

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<v Speaker 1>administrative body within the State of Georgia government called the

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<v Speaker 1>Georgia Code Revision Commission And the Georgia Code Revision Commission

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<v Speaker 1>is passed with collecting law is that the state legislature

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<v Speaker 1>in Georgia passes and publishing them in some sort of

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<v Speaker 1>organized way. So this commission is the official publisher of

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<v Speaker 1>the official Code of Georgia annotated. Now it's important to

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<v Speaker 1>explain what an annotated code is in most states and

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<v Speaker 1>the federal government, the law is published as it comes

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<v Speaker 1>out of the legislative body. It is simply organized within

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<v Speaker 1>a code. It's given section numbers and chapter or title

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<v Speaker 1>numbers so that people can easily find what they need

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<v Speaker 1>to refer to. However, in a handful of states, such

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<v Speaker 1>as Georgia, there are annotated official codes, and by annotated

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<v Speaker 1>we mean yes, the language of the law that was

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<v Speaker 1>passed is there, but in addition, there will be some

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<v Speaker 1>sort of commentary that immediately follows and applies to each section. So,

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<v Speaker 1>for example, it could say that this section of the

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<v Speaker 1>law was passed by the state legis lature in order

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<v Speaker 1>to amend another section that previously existed. It's almost like

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<v Speaker 1>a historical footnotbody, but it can encompass enormous range of

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<v Speaker 1>informational material, and that becomes important here. So what happened

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<v Speaker 1>is that a public interest organization called public Resource dot

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<v Speaker 1>org went out and bought the entire current official Code

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<v Speaker 1>of Georgia annotated, many many volumes, at a very significant

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<v Speaker 1>cost thousands of dollars. They then digitalized every page of

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<v Speaker 1>the official Code to george Annotated, and they posted it

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<v Speaker 1>on a website where they made it available for free

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<v Speaker 1>to anyone who wanted to read the Law of Georgia.

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<v Speaker 1>Fedlis to say that Georgia Could Revision Commission was a

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<v Speaker 1>little bit upset about this because they have a copyright

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<v Speaker 1>in the Official Code of Georgia annotated, and so they

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<v Speaker 1>brought a copyright lawsuit against Public Resource Order alleging infringe

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<v Speaker 1>it through the publication on Moss of the entire code

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<v Speaker 1>on the Internet. So it seems like they have a

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<v Speaker 1>good claim. What's the issue? So the issue is whether

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<v Speaker 1>or not this Georgia Code Revision Commission is an author

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<v Speaker 1>within the meaning of the Copyright Act such that it

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<v Speaker 1>can actually own a copyright in the Official Code of

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<v Speaker 1>Georgie annotated and therefore be a plaintiff to enforce copyright

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<v Speaker 1>against infringers. And the Eleventh Circuit ruled that the Georgia

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<v Speaker 1>Code Revision Commission was not the author of the Official

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<v Speaker 1>Code of george annotated and therefore could not take out

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<v Speaker 1>a copyright in it and could not bring a copyright

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<v Speaker 1>infringement lawsuit against Public Resource dot Org. So in the decision,

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<v Speaker 1>could the justices make a distinction between the official law

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<v Speaker 1>and the commentaries there is case law out there in

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<v Speaker 1>which attempts have been made to copyright purely the statutory

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<v Speaker 1>enactments without any comment, and those cases uniformly say that

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<v Speaker 1>that's not allowed. So the fact that this is an

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<v Speaker 1>annotated code makes it different, and which is why the

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<v Speaker 1>Supreme Court accepted this case in order to lend some

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<v Speaker 1>clarity in this area as to that particularly distinction. Now,

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<v Speaker 1>the court below, in what I thought was one of

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<v Speaker 1>the best opinions in a copyright case I've read in

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<v Speaker 1>some time. But I praise yes it is Judge Marcus

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<v Speaker 1>who wrote the decision below, wrote a decision that every

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<v Speaker 1>American should read. Just quite simply. It is both elegant

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<v Speaker 1>and profound and goes to the nature of what we

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<v Speaker 1>are all about as Americans. Judge Marcus says, and I'm

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<v Speaker 1>quoting here, the people are the constructive authors of official

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<v Speaker 1>legal promulgations of government that represent an exercise of sovereign authority.

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<v Speaker 1>And because they are the authors, the people are the

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<v Speaker 1>owners of these works, meaning that the works are intrinsically

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<v Speaker 1>public domain material and therefore copyrightable. He's laying down a

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<v Speaker 1>line in the sand that says, I don't care what

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<v Speaker 1>excuse you have for copyrighting the law. You can call

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<v Speaker 1>it an annotated work, the commentary on the work, but

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<v Speaker 1>you cannot take away the right of the people to

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<v Speaker 1>unfettered access to the law. It is a very very

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<v Speaker 1>important decision, one that carries great consequence beyond copyright and

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<v Speaker 1>goes to the heart of the American experiment, which is

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<v Speaker 1>who owns the law? Who ultimately is the sovereign authority?

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<v Speaker 1>And Judge Marcus includes that the people are the ultimate sovereigns,

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<v Speaker 1>not the legislature and certainly not the Georgia Code Revision Commission,

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<v Speaker 1>and therefore this is not copyrightable material. Coming up on

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<v Speaker 1>Bloomberg Law Blackbeard Ship at the Supreme Court. You're listening

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<v Speaker 1>to Bloomberg Law with June Grozzo from Bloomberg Radio. It's

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<v Speaker 1>a case of video piracy involving the famous pirate Blackbeard

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<v Speaker 1>Ship three centuries after that ship was wrecked off the

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<v Speaker 1>coast of North Carolina. And even though pirates don't care

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<v Speaker 1>much about property rights, the documentary filmmaker who's accusing North

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<v Speaker 1>Carolina of pirrating his footage of the wrecked ship, certainly does.

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<v Speaker 1>There was little mention of black Beard during the Supreme

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<v Speaker 1>Court arguments over the alleged copyright infringement. The justices were

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<v Speaker 1>more concerned with North Carolina's argument of state sovereign immunity.

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<v Speaker 1>Justice Stephen Brier question whether sovereign immunity would let a

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<v Speaker 1>state profit unfairly at the expense of creators. What the

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<v Speaker 1>state decides to do with its own website charging five

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<v Speaker 1>dollars or something is to run rocky uh Mrs Marvel whatever?

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<v Speaker 1>Uh spighter man and uh perhaps groundhowk day? All right? Now?

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<v Speaker 1>Great idea several billion dollars flows into the treasury. I've

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<v Speaker 1>been talking with intellectual property litigator Terence ross a partner

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<v Speaker 1>Captain Uten Rosenman. So Terry tell us about this pirate's tale.

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<v Speaker 1>So Mr Allen, who is the purported copyright owner, specializes

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<v Speaker 1>in searching for and exploring underwater shipwrecks, and in nine

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<v Speaker 1>six he obtained a permit from the state of North

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<v Speaker 1>Carolina to explore for specifically pirate shipwrecks off the coast

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<v Speaker 1>of North Carolina. And what makes this sort of interesting

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<v Speaker 1>case is that he's the person who eventually found the

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<v Speaker 1>famous pirate ship used by Blackbeard. If you were called

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<v Speaker 1>Blackbeard was an Englishman by the name of Edward Teach,

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<v Speaker 1>who for pirate purposes, went by the name Blackbeard. In

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<v Speaker 1>seventeen seventeen, he captured a French merchant ship called the

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<v Speaker 1>Queen and Revenge. He refitted it as a warship and

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<v Speaker 1>used it to terrorize ship being in the coastal regions

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<v Speaker 1>between North Carolina and Florida for about a year. And

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<v Speaker 1>then he was cruising off the coast of Beaufort, North

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<v Speaker 1>Carolina in seventeen eighteen and managed to run in aground.

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<v Speaker 1>He abandoned the ship. It eventually sank, and the area

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<v Speaker 1>they're off the coast of Beaufort apparently is constantly shifting

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<v Speaker 1>and changing, so the ground he ran the ship onto

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<v Speaker 1>sort of disappeared. The ships were disappeared, people lost track

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<v Speaker 1>of where it was, and Mr Allen was the one

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<v Speaker 1>who rediscovered it. Now. As part of his explorations, Mr

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<v Speaker 1>Rout takes very detailed videography and underwater still photography, and

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<v Speaker 1>that's where this case starts. As part of the permitting

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<v Speaker 1>process from the State of North Carolina, Mr Allen had

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<v Speaker 1>to agree to submit the film and photographs he was

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<v Speaker 1>taking to the state, and the state had certain rights

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<v Speaker 1>to use it, not unlimited rights, but certain rights to

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<v Speaker 1>use it. The long and short of it is as

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<v Speaker 1>astral and took the position that the state North Carolina

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<v Speaker 1>was abusing its rights and making use of his video

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<v Speaker 1>footage in an unauthorized way, and he brought a copyright lawsuit.

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<v Speaker 1>He had copyrighted all of the film and photographs with

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<v Speaker 1>the United States Copyright Office, and so he was entitled

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<v Speaker 1>to take action in a court of law to defend

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<v Speaker 1>his entitlement to those copyrights, and he did so. Tell

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<v Speaker 1>us about the legal issue here. The legal issue is

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<v Speaker 1>one of sovereign immunity. In English law countries, the sovereign

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<v Speaker 1>is generally considered to be immune from lawsuit unless the

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<v Speaker 1>sovereign has expressly agreed that citizen can bring a suit

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<v Speaker 1>against the sovereign for some specific purpose. And so in

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<v Speaker 1>this country, both the federal government and the states have

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<v Speaker 1>passed legislation that allows individual citizens in certain circumstances to

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<v Speaker 1>bring suit against them. For example, if you slip and

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<v Speaker 1>fall on federal land or state land and there's some

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<v Speaker 1>negligence on the part of the federal government or the

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<v Speaker 1>state government. Almost every jurisdiction as a piece of legislation

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<v Speaker 1>that allows that sort of tort action to be filed.

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<v Speaker 1>The key here is though, that the sovereign has to

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<v Speaker 1>have allowed the lawsuit. So the defense made by the

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<v Speaker 1>state in North Carolina was the officials of the government

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<v Speaker 1>of North Carolina are entitled to sovereign immunity and they

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<v Speaker 1>cannot be suited for copyright infringement. And that's the crux

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<v Speaker 1>of the legal issue that makes it sound like it's

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<v Speaker 1>an open and shut case. What's the problem. Copyright lawsuits

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<v Speaker 1>against state officials is not something that Mr Allen dreamed

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<v Speaker 1>up for the first time. They have been around for

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<v Speaker 1>decades and they have typically been dismissed because the state

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<v Speaker 1>officials are protected by their state sovereign munity laws. This

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<v Speaker 1>led historically to some really egregious cases in which there

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<v Speaker 1>was blatant, knowing copyright infringement by state officials in order

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<v Speaker 1>to profit off of someone else's work. And Congress finally said,

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<v Speaker 1>you know, enough is enough, and they passed a piece

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<v Speaker 1>of legislation called the Copyright Remedy Clarification Act of in

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<v Speaker 1>that Congress used its power under Article one of the

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<v Speaker 1>United States Constitution, specifically the power to enact and enforce

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<v Speaker 1>copyright laws on that basis, they abrogated sovereign immunity for

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<v Speaker 1>states and for state officials or infringement of copyright, and

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<v Speaker 1>it could not have been more clear. The legislation says,

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<v Speaker 1>any state, any instrumentality of a state, and any officer

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<v Speaker 1>employee of a state, or instrumentality of state acting in

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<v Speaker 1>his or her official capacity shall not be immune under

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<v Speaker 1>the eleventh Amendment of the Constitution of the United States

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<v Speaker 1>warrender and any other doctor in a sovereign immunity from

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<v Speaker 1>suit in a federal court by any person, including any

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<v Speaker 1>governmental or non governmental entity, for a violation of any

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<v Speaker 1>of the exclusive rights of a copyright owner. Congress wanted

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<v Speaker 1>to end sovereign immunity for states and state officials for

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<v Speaker 1>copyright and infringement, and they thought they had done so

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<v Speaker 1>in the Copyright Remedy Clarifification Act. And so when in

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<v Speaker 1>the District court in North Carolina, the state defended by

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<v Speaker 1>saying its officials had sovereign immunity could not be sued

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<v Speaker 1>for copyright infringement, Mr Allen responded by saying, no, no, no,

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<v Speaker 1>that is incorrect. You lost your sovereign immunity back in

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<v Speaker 1>as a result of Congress's enactment of Copyright Remedy Clarification Act.

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<v Speaker 1>What did the justices seem mainly concerned about during oral

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<v Speaker 1>arguments and any inclination as to how they'll rule. The

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<v Speaker 1>argument made by the State of North Carolina was that

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<v Speaker 1>the Copyright Remedy Clarification Act was not a valid exercise

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<v Speaker 1>of Congress's power to abrogate sovereign immunity. And the reason

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<v Speaker 1>they said that was that Congress had expressly, in passing

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<v Speaker 1>that act, pointed to Article one of the Constitution as

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<v Speaker 1>the basis for their power to do it. After passage

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<v Speaker 1>of the Copyright Remedy Clarification Act, the Supreme Court in

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<v Speaker 1>another case called Seminal Tribe in connection with waiver of

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<v Speaker 1>sovereign immunity for patent infringement, the Supreme Court had said

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<v Speaker 1>that Article one does not provide the basis upon which

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<v Speaker 1>you can abrogate sovereign immunity for a state. And so

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<v Speaker 1>North Carolina came in and said, you know, based on

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<v Speaker 1>the Spring Court Seminal Trit case, which had to do

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<v Speaker 1>with patents, not copyrights, but the reasoning should apply equally

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<v Speaker 1>to copyrights, and therefore Congress's reliance upon Article one of

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<v Speaker 1>the Constitution is misplaced. The law is invalid. Now, the response,

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<v Speaker 1>in a response that seemed to gain some traction with

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<v Speaker 1>the justices at or argument, the response from Mr Allen's

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<v Speaker 1>attorneys was that section five of the Fourteenth Amendment would

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<v Speaker 1>provide this power to abrogate sovereign immunity. Now, the tricky

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<v Speaker 1>part of the whole thing is that Congress never mentioned

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<v Speaker 1>Section five of the Fourteenth Amendment as the basis for

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<v Speaker 1>passing this law. It expressly relied upon Article one of

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<v Speaker 1>the Constitution. I think that what the Court will do,

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<v Speaker 1>because this tends to be a very pragmatic court with

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<v Speaker 1>respect the copyright matters, is to say that it does

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<v Speaker 1>not matter that they didn't mention section five or the

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<v Speaker 1>fourteenth Amendment. Otherwise, and this is the sense you got

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<v Speaker 1>from or argument. Otherwise, the Court would be invalidating the law,

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<v Speaker 1>sending it back to Congress, and Congress would simply have

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<v Speaker 1>to go to the motion of re enacting it, but

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<v Speaker 1>this time mentioning the fourteenth Amendment. And that seems like

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<v Speaker 1>sort of a complete waste of everybody's time. And this

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<v Speaker 1>is a pragmatic Supreme Court in copyright matters, and so

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<v Speaker 1>I think the sense from the or argument was why

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<v Speaker 1>go through that charade of requiring Congress to re enact

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<v Speaker 1>the exact same law and this time site to the

0:15:25.920 --> 0:15:29.320
<v Speaker 1>Fourteenth Amendment, When we the Supreme Court can simply say

0:15:29.600 --> 0:15:34.280
<v Speaker 1>it was a valid exercise of Congressional authority under the

0:15:34.280 --> 0:15:38.360
<v Speaker 1>fifth section of the Fourteenth Amendment. How important will this

0:15:38.520 --> 0:15:41.200
<v Speaker 1>ruling be? It seemed as if some of the justices

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<v Speaker 1>were skeptical about how widespread this problem was. That is

0:15:46.680 --> 0:15:49.800
<v Speaker 1>absolutely correct. There was a sense on the Court that

0:15:49.840 --> 0:15:54.040
<v Speaker 1>there is not a lot of copyright infringement by the states.

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<v Speaker 1>I think the problem is at that point of view

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<v Speaker 1>misses the historical perspective of here. But the fact is

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<v Speaker 1>Congress past the Copyright Remedy Clarification because there had been

0:16:06.520 --> 0:16:10.440
<v Speaker 1>a spate of copyright infringements that were blatant and egregious

0:16:10.640 --> 0:16:13.720
<v Speaker 1>by states and state officials. And the fact that there

0:16:13.760 --> 0:16:17.760
<v Speaker 1>has been so little state copyright infringement since that time

0:16:18.320 --> 0:16:24.600
<v Speaker 1>merely goes to justify passage of the Copyright Remedy Clarification Act.

0:16:24.600 --> 0:16:28.160
<v Speaker 1>In the first place, it was successful. It stopped state

0:16:28.320 --> 0:16:33.120
<v Speaker 1>actors infringing upon copyright owners rights. And I think at

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<v Speaker 1>the end of the day, the Supreme Court will come

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<v Speaker 1>to the conclusion that the reason you've seen so little

0:16:39.040 --> 0:16:41.840
<v Speaker 1>copyright infringement by state officials of late is because of

0:16:41.880 --> 0:16:44.960
<v Speaker 1>this law, and that if they invalidate it, there will

0:16:45.000 --> 0:16:49.280
<v Speaker 1>be this gap during which the lack of waiver of

0:16:49.320 --> 0:16:53.000
<v Speaker 1>solid immunity will be exploited by state officials. That's Terence

0:16:53.120 --> 0:16:56.360
<v Speaker 1>ross A partner Captain uten Rosenman, and that's it for

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<v Speaker 1>this edition of Bloombard Law. I'm June Grosso. Thanks so

0:16:59.560 --> 0:17:03.360
<v Speaker 1>much for listening. H