Supreme Court to decide if N.C. pirated digital Blackbeard treasure

North Carolina's Attorney General and Solicitor General will argue the state is not...
North Carolina's Attorney General and Solicitor General will argue the state is not constitutionally-bound to pay Rick Allen when it uses the documentarrian's copyrighted videos of Blackbeard's sunken flagship (Source: Gray DC).(GRAYDC)
Published: Nov. 4, 2019 at 9:19 PM EST
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Dead for centuries, the high seas most infamous pirate will take center-stage in the nation’s highest court.

Underwater photographer Rick Allen’s dives into the depths of history and to a sunken pirate ship will bring him to the Supreme Court Tuesday.

"It is irony upon irony, upon irony," he said of the case, "because you have Blackbeard the pirate who was involved with piracy, and we have a Supreme Court case about piracy."

The documentarian has spent the last 20 years recording video as researchers explore The Queen Anne's Revenge, Blackbeard's flagship, which sunk off the coast of North Carolina in the 1700's.

Allen, argues North Carolina pirated his media content – posting it online without paying up.

"My client’s livelihood is bound up in these copyrights," said Derek Shaffer, who will argue Allen's case before the nine justices of the Supreme Court Tuesday.

Shaffer said Congress gave copyright owners the right to sue states in federal court, and the Supreme Court ought to uphold it, "because otherwise, you’ve got private property rights, these copyrights, that states are stepping on and not having to pay for it."

But in filings, North Carolina’s attorney general and solicitor general argue Congress never had the constitutional foundation to force a state into federal court for copyright violations. Through a spokesperson, the pair declined to talk to us until the case is settled.

Roger Schechter – a law professor at George Washington University -- described the case as one of the most legally-complex the court may see all year. "It’s a very classic American history fight between states’ rights and centralized federal authority," he said.

Schechter said the court has to strike a balance between two separate, and in this case conflicting, sections of the constitution. He said how it rules will have a dramatic impact on a state’s ability to publish private content, whether they be videos like Allen’s or reports with substantial findings on matters of legitimate public interest.

Schecter said the court could render a 5-4 decision split along conservative and liberal ideologies, but most splits aren't so neatly defined. He points out that Justices Ginsburg and Breyer -- both considered liberal -- don't see eye-to-eye on copyright.

"It’s a bit hard to handicap," he said of trying to predict how the court will decide the case.

If the court decides in Allen's favor, and states are forced to pay up for copyrighted content, that cost will ultimately fall on taxpayers.

Oral arguments in the case are expected to begin at about 11 a.m. on Tuesday. They’ll last about an hour, but it could be next summer before a decision is announced.

Copyright 2019 Gray DC. All rights reserved.

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