The justices were called to referee a dispute between the state and a video production company that has spent two decades documenting the salvage of the Queen Anne’s Revenge, which the legendary pirate Blackbeard ran aground in 1718.
Associate Justice Sonia Sotomayor said it was “deeply troubling” that after North Carolina was caught with copyrighted material and agreed to pay a fine, the state legislature enacted “Blackbeard’s Law” to convert the salvage effort to public record.
Associate Justice Ruth Bader Ginsburg said there was “something unseemly” about a state being able to hold its own copyrights while infringing upon others “to our heart’s content.”
Associate Justice Stephen Breyer said the copyright infringement, which Congress sought to ban in 1990, could lead a state like California to show films such as Rocky, Spiderman and Groundhog Day on its own streaming service.
“It could be rampant, states ripping off copyright holders,” added Associate Justice Brett Kavanaugh.
Breyer also wondered why states haven’t invaded copyrights and patents more, under the theory that they are immune from being sued. By stealing technology, he said, states could discover “the solution to all their budget problems.”
The shipwreck was discovered in 1996 by Intersal, a private research and salvage company. It agreed that North Carolina owns the shipwreck, but it contracted with Nautilus Productions, owned by Frederick Allen, to shoot video and photos of the salvage.
The state posted some of that material in 2013 as part of its tourism efforts. After agreeing to pay $15,000 for the infringement, it copied and published more material and then passed the law to legalize its actions.
More than 300 items from the sunken ship are displayed at the state-owned North Carolina Maritime Museum, including a 2-ton cannon. The state holds annual pirate festivals to mark the famed pirate’s notoriety.
Although federal law protects such copyrighted material from infringement, a federal appeals court agreed with North Carolina that states are immune under the 11th Amendment to the Constitution from some private copyright infringement claims.
“After Nautilus spent nearly two decades creating works by photographing and filming (at considerable risk) underwater excavation of Blackbeard’s famed Queen Anne’s Revenge, the state brazenly pirated them,” the company protested.
Its lawyer, Derek Shaffer, told the court Tuesday that it would have been “antithetical” to the framers of the Constitution that states can infringe private property rights without paying.
“We think that that is a constitutional violation pretty much every time,” Shaffer said.
But North Carolina‘s deputy solicitor general, Ryan Park, said juries have awarded excessive fines for copyright infringement. The state, he said, must devote its tax dollars to more important functions, such as schools and disaster relief.