“One man’s legally sanctioned privateer is another man’s pirate.”
[James Wadsworth, Global Piracy: A Documentary History of Seaborne Banditry (2019), at p. 8]
We live in a time of contradictions and confusion, and today we aim to explore how some such tensions have manifested themselves in the area of intellectual property law.
On the one hand, we have a national and international commitment to combating infringement, especially where that piracy is sponsored by “state” actors. In fact, the American Bar Association has recognized that “intellectual property is critical to the U.S. economy,” but “is subject to a tremendous level of theft… and the fact that the Internet makes IP theft easier.” Because the “[i]nternet also serves as a medium for organized crime, competitors, activist groups, and state-sponsored actors to steal intellectual property,” efforts to protect IP go beyond civil remedies and criminal penalties to diplomatic necessities and national security requirements. Id. In fact, annually, the U.S. Trade Representative (USTR) publishes a Special 301 Report on global enforcement of IP rights. The 2020 Special 301 Report listed 23 countries on the “watch list” and 10 countries on the “priority watch list” for IP rights violations. As the ABA has noted in the past, the “U.S. government takes bilateral actions with countries on these lists to improve foreign protection of U.S. intellectual property,” especially against state-sponsored coves and other notorious havens for IP counterfeiters and pirates.
But, at the same time that battles are being fought against foreign state sponsors of infringement, the United States Supreme Court held March 23, 2020, in Allen v. Cooper, that federal courts provide no sanctuary or succor where a copyright holder is victimized by a U.S. state itself, as opposed to the mercenaries serving a foreign one. Indeed, in so holding, the Supreme Court, with a “simple nod and wink…[,] turn[ed] a pirate into a privateer overnight,” even though North Carolina’s “behavior, victims, tools, purpose and motivations remain[ed] utterly unchanged,” (Wadsworth, supra, (2019), at p. 10), and consistent with those infringers everywhere. Whether the U.S. Congress will take steps to eliminate that contradiction, and protect intellectual property owners from privateering U.S. states, remains to be seen, though one may find some encouragement from the fact that the United States Copyright Office is itself eliciting support for statutory changes through its State Sovereign Immunity Study portal. Though these waters are hardly uncharted, they are murky nonetheless. So let’s set sail.
As our first port, we stop at a familiar law-enforcement atoll, the website of the Federal Bureau of Investigation. There, the United States government exhibits its desire to combat state sponsored piracy quite clearly:
Intellectual property theft involves robbing people or companies of their ideas, inventions, and creative expressions—known as “intellectual property”—which can include everything from trade secrets and proprietary products and parts to movies, music, and software….
Preventing intellectual property theft is a priority of the FBI’s criminal investigative program. … Key to the program’s success is linking the considerable resources and efforts of the private sector with law enforcement partners on local, state, federal, and international levels.
Also new in our approach to intellectual property theft is an enhanced relationship between our criminal and counterintelligence personnel when working theft of trade secrets cases. A trade secrets case worked under the counterintelligence program—which occurs when the involvement of state-sponsored actors is suspected—will be referred to a criminal squad if no state sponsorship is found. And when criminal investigators begin to suspect the involvement of a state sponsor, the case will be referred to the counterintelligence squad. The Bureau’s goal is to contain and/or even prevent the theft as quickly as possible, no matter who’s behind it….
To accomplish this goal, the [National Intellectual Property Rights Coordination Center (NIPRCC)] brings together multiple federal agencies—along with Interpol, Europol and the governments of Canada and Mexico—in a task force setting.
[FBI, What We Investigate: Intellectual Property/Privacy]
The distance from FBI headquarters to the US Supreme Court is 1.2 miles, hardly be a difficult distance on the open sea. But Washington DC traffic and a bit of legal fog obscures connections between those two places. Where the FBI’s expresses a desire to “prevent the theft as quickly as possible, no matter who’s behind it,” the Supreme Court’s said in Allen (at 140 S.Ct. at 1006) that documented infringements, being small in number, by US states, was “not, to put the matter charitably, the stuff” on which one could justify sustaining the Copyright Remedy Clarification Act of 1990 (CRCA), an act allowing states to be sued in federal court. Understanding Allen in more detail may explain, but should not excuse, such haze.
Allen is a case not only about copyright piracy, but actual piracy. “In 1717, the pirate Edward Teach, better known as Blackbeard, captured a French slave ship in the West Indies and renamed her Queen Anne’s Revenge. The vessel became his flagship. Carrying some 40 cannons and 300 men, the Revenge took many prizes as she sailed around the Caribbean and up the North American coast. But her reign over those seas was short-lived. In 1718, the ship ran aground on a sandbar a mile off Beaufort, North Carolina. Blackbeard and most of his crew escaped without harm. Not so the Revenge. She sank beneath the waters, where she lay undisturbed for nearly 300 years.” Allen (at 140 S.Ct. at 999). As the Supreme Court went on to note, “In 1996, a marine salvage company named Intersal, Inc., discovered the shipwreck. Under federal and state law, the wreck belongs to North Carolina. See 102 Stat. 433, 43 U.S.C. § 2105(c); N.C. Gen. Stat. Ann. § 121-22 (2019). But the State contracted with Intersal to take charge of the recovery activities. Intersal in turn retained petitioner Frederick Allen, a local videographer, to document the operation. For over a decade, Allen created videos and photos of divers’ efforts to salvage the Revenge‘s guns, anchors, and other remains. He registered copyrights in all those works.” Id. Then meshing the piracy metaphor fully, the Court stated that “This suit arises from North Carolina’s publication of some of Allen’s videos and photos. Allen first protested in 2013 that the State was infringing his copyrights by uploading his work to its website without permission. To address that allegation, North Carolina agreed to a settlement paying Allen $15,000 and laying out the parties’ respective rights to the materials. But Allen and the State soon found themselves embroiled in another dispute. Allen complained that North Carolina had impermissibly posted five of his videos online and used one of his photos in a newsletter. When the State declined to admit wrongdoing, Allen filed this action in Federal District Court. It charges the State with copyright infringement (call it a modern form of piracy) and seeks money damages.” Id.
Allen, however, quickly switches course from a copyright case to a constitutional one because “North Carolina moved to dismiss the suit on the ground of sovereign immunity. It invoked the general rule that federal courts cannot hear suits brought by individuals against nonconsenting States,” based on the 11th Amendment to the United States Constitution. Id. “But Allen responded that an exception to the rule applied because Congress had abrogated the States’ sovereign immunity from suits like his. See Plaintiffs’ Response, Doc. 57, p. 7. The [CRCA] provides that a State ‘shall not be immune, under the Eleventh Amendment [or] any other doctrine of sovereign immunity, from suit in Federal court’ for copyright infringement. 17 U.S.C. § 511(a).” Id. The Supreme Court, ultimately, sided with North Carolina.
According to the Court, the CRCA did include “clear enough language to abrogate the States’ immunity from...
