Queen Anne’s Revenge, Indeed!: Copyright Conundrums, Sovereign States, and IP Piracy

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.