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Old 03-24-2020, 08:48 PM
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Blackbeard the pirate case makes Supreme Court


It's a copyright case about images of his ship that was sunk over 300 years ago. 9-0 said that the guy who took the pictures and videos cannot sue the state of NC

https://www.npr.org/2020/03/24/82038...pyright-claims
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Old 03-24-2020, 11:05 PM
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That doesn't make sense. Copyrights are recognized as intellectual property. Violations of copyright are recognized as a form of theft of property. We have an amendment that forbids "taking" of property without compensation, no?

Yet we have long-established precedent of "sovereign immunity" (going back far longer than the United States) that a state can't be sued unless the state agrees to be sued

So what prevents a State from taking anything it wants from anyone it wants, with total immunity and impunity? What use is the "taking" clause if it can't be enforced and there is no remedy to violations like this?

Something isn't adding up here.
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Old 03-25-2020, 09:20 AM
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To me the sovereign immunity thing is to protect the state and it's officials from suits over when they are doing their job. The legal system would be a nightmare if anyone could sue a judge over a ruling they didn't like.

If they do something "outside" their job, then they are unprotected. E.g., a judge coming down off the bench and hitting someone with a night stick.

I think infringing someone's copyright is not "part of the job".

It is puzzling why so many judges put intellectual property in a different slot that physical property. Theft is theft.

Think about one consequence of this ruling: The states can now install any commercial software they can get their hands on and use it for free. MS and such will not be happy.
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Old 03-25-2020, 12:48 PM
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It is puzzling why so many judges put intellectual property in a different slot that physical property. Theft is theft.
Intellectual property and physical property are radically different - theft under the law is typically defined as taking an object from an owner with the intent to deprive the owner of it permanently. Copyright infringement does not remove anything from the owners possession (much less permanently), so is clearly not theft in the traditional sense. In simpler terms, me turning on radio or playing a dvd at a bar instead of rather than my house is just not the same thing as taking the radio or dvd from the owner. Calling 'you used a piece of your personal property in a way that I do not approve of' theft just doesn't make sense.
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Old 03-26-2020, 12:31 AM
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Intellectual property and physical property are radically different - theft under the law is typically defined as taking an object from an owner with the intent to deprive the owner of it permanently. Copyright infringement does not remove anything from the owners possession (much less permanently), so is clearly not theft in the traditional sense. In simpler terms, me turning on radio or playing a dvd at a bar instead of rather than my house is just not the same thing as taking the radio or dvd from the owner. Calling 'you used a piece of your personal property in a way that I do not approve of' theft just doesn't make sense.
But the point is apt because it denies the owner all economic value of his or her property. Sure, if I pirate a copy of the movie "1917" the copyright holder still retains a copy in his or her possession, but that is not what makes it valuable. If I or anyone else can reproduce it without penalty, then the copyright itself becomes worthless.

Perhaps the Plaintiff here should have alleged a taking instead of copyright infringement, but the State of North Carolina violating his copyright does not deprive him of economic value as presumably he can enforce it against non-state violators.

But the prior point was excellent. Can states now load their computer systems with "free" Windows, MS Office, Adobe Acrobat Pro, any software they want, etc.? Can the state release the newest movies and show them for free to poor people (or to anyone)? Sell Disney merchandise?
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Old 03-26-2020, 01:27 PM
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But the prior point was excellent. Can states now load their computer systems with "free" Windows, MS Office, Adobe Acrobat Pro, any software they want, etc.? Can the state release the newest movies and show them for free to poor people (or to anyone)? Sell Disney merchandise?
Ask Congress.

As the Court stated, they were bound by precedent, but that "if it [Congress] detects violations of due process, then it may enact a proportionate response. That kind of tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice."

I, for one, would have thought you would praise a judicial decision that defers to the legislature and uses judicial restraint. But, hey, YMMV.
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Old 03-26-2020, 07:08 AM
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Intellectual property and physical property are radically different - theft under the law is typically defined as taking an object from an owner with the intent to deprive the owner of it permanently. Copyright infringement does not remove anything from the owners possession (much less permanently), so is clearly not theft in the traditional sense. [...]
This is just backwards. The "object of value" is not access to the content the copyright holder created. It is obviously trivial to let somebody see what they themselves created. The "object of value" is the right to copy it, which the creator typically wants to get money for. That's why it's called a "copyright".
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Old 03-26-2020, 12:21 PM
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Intellectual property and physical property are radically different - theft under the law is typically defined as taking an object from an owner with the intent to deprive the owner of it permanently.
Well, I'm no lawyer, but I'm surprised that passed even cursory examination. Intent? If I steal your $100 bill, it's because I want $100 -- I don't give a flying fig whether or not you're deprived of it. In fact, if I could get $100 for free AND leave you the $100, so you wouldn't be deprived and maybe wouldn't even know or care, I'd much prefer to do it THAT way. So "intent to deprive" seems like a silly and trivial test for theft.
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Old 03-26-2020, 12:48 PM
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Well, I'm no lawyer, but I'm surprised that passed even cursory examination. Intent? If I steal your $100 bill, it's because I want $100 -- I don't give a flying fig whether or not you're deprived of it. In fact, if I could get $100 for free AND leave you the $100, so you wouldn't be deprived and maybe wouldn't even know or care, I'd much prefer to do it THAT way. So "intent to deprive" seems like a silly and trivial test for theft.
That's been the definition of larceny for about 700 years, so it has some pedigree.

I think that you are confusing "intent" with "purpose." If you take my $100, and intend to keep it for yourself, you intend what you do which is permanently deprive me of it. You keeping it for yourself by definition permanently deprives me of it.

That distinguishes it from seeing it fall out of my pocket in a store and you pick it up and hand it back to me; or you see the cell phone that I dropped earlier and you put it in your pocket and carry it over to lost and found. You still took what was mine, but it was not theft because you didn't intend to deprive me of it permanently.

Or if I take your sweet car for a joyride, it is not theft. Yes, I took your car, but I intended to bring it back. It is not theft even if I wreck it and it never comes back to you because I did not have the requisite intent. It's not theft, but it violates statutes pertaining to joyriding.

Last edited by UltraVires; 03-26-2020 at 12:50 PM.
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Old 03-26-2020, 06:36 PM
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Well, I'm no lawyer, but I'm surprised that passed even cursory examination. Intent? If I steal your $100 bill, it's because I want $100 -- I don't give a flying fig whether or not you're deprived of it.
That definition doesn't say anything about what you give a flying fig about, just the intent. If you take $100, generally you intend to keep it and send it for yourself, but if your intent was clearly to take it temporarily, show it off to your friends, then return it, then what you did wouldn't qualify as theft under the traditional definition. Joyriding vs auto theft is a better example, if you intend to take a car and use it to make a getaway from a robbery or just drive it for fun, then leave it for the owner to recover, you have done something different than if you take the car and keep it for your long term use or to chop up for parts to sell, and generally will be considered guilty of a different crime.

There's at least centuries and (while I don't feel like researching Latin, Greek, or Arabic words to be sure) probably millennia of tradition behind that definition. If you think it doesn't pass even cursory examination, there's really nothing anyone can do to help you make sense of this situation that is actually not at all confusing.
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Old 03-26-2020, 06:47 AM
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It is puzzling why so many judges put intellectual property in a different slot that physical property. Theft is theft.
The fact copyright expires rather argues against this interpretation.

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Think about one consequence of this ruling: The states can now install any commercial software they can get their hands on and use it for free. MS and such will not be happy.
Microsoft can enforce licensing schemes using phone-home mechanisms. That kind of remote shutdown will serve their purposes.
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Old 03-26-2020, 07:02 AM
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The fact copyright expires rather argues against this interpretation.

Microsoft can enforce licensing schemes using phone-home mechanisms. That kind of remote shutdown will serve their purposes.
1. But while the copyright is in effect, you have rights. It's like leasing something. If you lease a building from someone and someone else moves in, refuses to leave or pay you, then that is illegal. That the lease expires is immaterial. (That an expiration changes things is a amazingly weak argument, IMHO.)

2. In case you hadn't noticed, these phone-home schemes and such are routinely gotten around. There's an immense number of people out there running MS software without paying them a dime. Plus not all software developers can afford to implement or, far more likely, get a license for such a method.
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Old 03-25-2020, 10:19 AM
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When would a state agree to be sued? As far as software goes, they said they mainly decided this case based on past cases.
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Old 03-25-2020, 01:39 PM
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But there are laws that say I cannot download a song or video from Youtube, Amazon , etc and sell it to someone else.
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Old 03-25-2020, 04:20 PM
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Have a look at Seminole Tribe v. Florida, 517 U.S. 44 (1996), and Central Virginia Community College v. Katz, 546 U.S. 356 (2006).

Seminole is the modern treatment of state sovereign immunity under the Eleventh Amendment. Short version, an individual can't sue them unless the state agrees. Katz is the one time the US Supreme Court saw fit to find an exception to that immunity in bankruptcy law. 5-4 decision, and I'm not convinced they got it right.

Now, and I haven't read the decision, can the photographer force the state to pay him a nominal royalty through some sort of non exclusive copyright license? Or may the state take and use his intellectual property however they see fit?

Last edited by Gray Ghost; 03-25-2020 at 04:21 PM.
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Old 03-25-2020, 06:17 PM
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Predictably, no photos of Blackbeard's ship in the article.
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Old 03-25-2020, 06:58 PM
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here is the decision

https://www.supremecourt.gov/opinion...8-877_dc8f.pdf

ECU (East Carolina University) has more than 250k artifacts from the Queen Anne's Revenge

https://www.qaronline.org/conservati...es-revenge-lab
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Old 03-25-2020, 09:01 PM
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It seems the case was decided on the basis of sovereign immunity.

But what I find particularly odd is that he was specifically *hired* to document the salvage. Granted, he was hired by the salvage company, not directly by the government. But still, typically these sorts of jobs are work for hire and the contract would usually include transfer of copyright. So itís not like he wasnít already paid for it, there was just a failure to draw up an appropriate contract.
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Old 03-26-2020, 09:01 AM
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It seems the case was decided on the basis of sovereign immunity.

But what I find particularly odd is that he was specifically *hired* to document the salvage. Granted, he was hired by the salvage company, not directly by the government. But still, typically these sorts of jobs are work for hire and the contract would usually include transfer of copyright.
That would depend. As a still photographer, I haven't done a "work for hire" job in over 20 years. When you hire me to do a job, you're paying for a license to use my work in a particular manner. I retain copyright to all my images. This is not unusual in the photo business. Don't know what it's like with video.

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Old 03-26-2020, 07:44 PM
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That would depend. As a still photographer, I haven't done a "work for hire" job in over 20 years. When you hire me to do a job, you're paying for a license to use my work in a particular manner. I retain copyright to all my images. This is not unusual in the photo business. Don't know what it's like with video.
Does the fact that the salvage company was working on a state contract change anything? I work for a defense contractor. Even though I don't work for the government directly, at the end of the day I fill out a time card, and my employer bills the federal government for the hours I put in. Any software I write while working on a federal contract ultimately becomes property of the federal government, since it was paid for with government funds. If I work on something that's unrelated to a federal contract, then the company pays me for that time out of their own pocket, and the company maintains control of what I create.

I don't know if it works any differently with state versus federal contracts, but I would guess it would work more or less the same way. If the salvage company passed the cost of hiring the videographer on to the state, then ultimately he was paid with state funds and any video he produced while working for them would likely become state property. If the salvage company paid the videographer out of their own pocket and didn't charge the state anything for it, then he probably maintains the copyright, if that's how contracts typically work in the video industry.

Last edited by WildaBeast; 03-26-2020 at 07:46 PM.
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Old 03-26-2020, 08:22 PM
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Does the fact that the salvage company was working on a state contract change anything?
I'm not a lawyer, so I couldn't say. It depends on what the contract says. Work for hire clauses are certainly not uncommon. The wire services, for instance, are pretty much all work for hire. If you want to try to negotiate that, they'll find someone else. It's a ripoff, but they give you access to events you normally wouldn't have, so it's a business calculation as to whether you want to accept those terms.

What the terms were in this particular situation, I assume is spelled out in the contract the videographer had with the salvage company.
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Old 03-26-2020, 10:14 PM
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Does the fact that the salvage company was working on a state contract change anything? I work for a defense contractor. Even though I don't work for the government directly, at the end of the day I fill out a time card, and my employer bills the federal government for the hours I put in. Any software I write while working on a federal contract ultimately becomes property of the federal government, since it was paid for with government funds. If I work on something that's unrelated to a federal contract, then the company pays me for that time out of their own pocket, and the company maintains control of what I create.

I don't know if it works any differently with state versus federal contracts, but I would guess it would work more or less the same way. If the salvage company passed the cost of hiring the videographer on to the state, then ultimately he was paid with state funds and any video he produced while working for them would likely become state property. If the salvage company paid the videographer out of their own pocket and didn't charge the state anything for it, then he probably maintains the copyright, if that's how contracts typically work in the video industry.
I'm not sure how the contracts typically work, but there was no dispute in this case that the Plaintiff owned the copyright to these photographs. In 2013, the state paid him $15,000 as a settlement. Then it infringed again, but this time decided it was not going to pay which led to the lawsuit.
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Old 03-26-2020, 10:22 AM
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I've seen part of the ship at this museum in Beaufort NC https://ncmaritimemuseumbeaufort.com/

and like everything else it's closed now.
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Old 03-26-2020, 11:11 AM
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But the point is apt because it denies the owner all economic value of his or her property. Sure, if I pirate a copy of the movie "1917" the copyright holder still retains a copy in his or her possession,
Exazctly and the traditional definition of theft, and what happens if you steal a physical copy, is that the owner no longer has the object. In the case of copyright infringement, the owner still has it. They are simply not the same thing, and straining analogies doesn't change that. That's why the courts treat things like copyright and trademark infringement differently than theft, because they ARE different than theft.

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but that is not what makes it valuable. If I or anyone else can reproduce it without penalty, then the copyright itself becomes worthless.
That is utterly irrelevant to the question of whether anything has been stolen. If I open a garbage dump next to your vacation home and tank the value of it, the property has been made worthless, but nothing I did can reasonably be called 'theft', it's a different tort or crime.

Whatever strained analogies people try to make, it's very obvious that courts treat 'theft' and 'copyright infringement' differently because they are two things that have major, objective differences between them. There is really nothing 'puzzling' about why 'taking an object from someone' and 'using a copy of an object that you bought in a way the owner doesn't approve of, or make a copy without permission' are treated differently by the courts.
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Old 03-26-2020, 12:42 PM
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Exazctly and the traditional definition of theft, and what happens if you steal a physical copy, is that the owner no longer has the object. In the case of copyright infringement, the owner still has it. They are simply not the same thing, and straining analogies doesn't change that. That's why the courts treat things like copyright and trademark infringement differently than theft, because they ARE different than theft.



That is utterly irrelevant to the question of whether anything has been stolen. If I open a garbage dump next to your vacation home and tank the value of it, the property has been made worthless, but nothing I did can reasonably be called 'theft', it's a different tort or crime.

Whatever strained analogies people try to make, it's very obvious that courts treat 'theft' and 'copyright infringement' differently because they are two things that have major, objective differences between them. There is really nothing 'puzzling' about why 'taking an object from someone' and 'using a copy of an object that you bought in a way the owner doesn't approve of, or make a copy without permission' are treated differently by the courts.
But, again, I think you are misrepresenting what is valuable. If you have a physical copy of the movie "1917" nobody is complaining that you have a copy of the movie. I mean, they are, but the thing of value that you are taking is the copyright holder's exclusive right to make a copy, not the copy itself.
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Old 03-27-2020, 09:16 AM
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I first heard of this case through the Planet Money podcast. I thought it was an interesting episode.

https://www.npr.org/2019/11/27/78330...-pirate-videos
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Old 03-27-2020, 12:23 PM
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Did the justices wear eye patches when they heard ARGH-uments?
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Old 03-28-2020, 03:12 PM
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Was sovereign immunity the argument made by the state, or did SCOTUS come up with that on their own?

If the state came up with it, are there any hints available as to why they didn’t resort to it the first time?
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Old 03-31-2020, 11:31 AM
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Was sovereign immunity the argument made by the state, or did SCOTUS come up with that on their own?
North Carolina asserted it was immune from this lawsuit: "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." Ruling in Allen v. Cooper
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If the state came up with it, are there any hints available as to why they didnít resort to it the first time?
Not in the court opinion. My guess was it was easier and less costly, but it could also have been they didn't think they could have won or the attorney in charge had a huge breakfast and wanted a nap instead of arguing about it.

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Can states now load their computer systems with "free" Windows, MS Office, Adobe Acrobat Pro, any software they want, etc.? Can the state release the newest movies and show them for free to poor people (or to anyone)? Sell Disney merchandise?
"As an initial matter, the concrete evidence of States infringing copyrights (even ignoring whether those acts violate due process) is scarcely more impressive than what the Florida Prepaid Court saw. Despite undertaking an exhaustive search, Oman came up with only a dozen possible examples of state infringement."

"The billís House and Senate sponsors got the point. The former admitted that ďthere have not been any significant numberĒ of copyright violations by States. Id., at 48 (Rep. Kastenmeier). And the latter conceded he could not currently see ďa big problem.Ē" From the opinion
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