Warendorf Beware Software Vendors! Blackbeard Strikes Again via the U.S. Supreme Court.
March 23, 2020, A videographer that documented the salvaging of Blackbeard’s sunken vessel found off of the Carolina coast sued the State of North Carolina for copyright infringement alleging that it’s posting of his videos on a website without his consent constituted copyright infringement. The State asserted sovereign immunity and that the Federal statute limiting such immunity as to patents and copyright claims was unconstitutional. The U.S. Supreme Court agreed with North Carolina. The example that almost – dissenting Justice Breyer gives is a State hosting an unlicensed screening of Disney’s Pirates of the Caribbean. This would now appear to be immune from a copyright claim from Disney. This means that any State that has a software license may run rough-shod over the software copyright restrictive covenants unless the license includes contract remedies enforceable under the applicable state’s immunity waivers. The lesson here is not to deliver any software, videos or photographs to a State government agency unless appropriate contracts addressing this issue have been duly executed. If the code (or other content) is delivered without a contract in place, the Vendor’s copyright in the code will not protect the vendor. Note that state agencies include its state universities—which would include its computer science departments –who would now seem to have free rein to grab anything on the web and use it without permission. The holding also applies to the underlying patent rights, if any. So, beware. Allen v. Cooper U.S. Supreme Court No. 18-877