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UNIDENTIFIED REPORTER #2, BYLINE: My nephew Seth (ph) is a pro at getting money from his parents. So since it is fundraising season here at NPR, I called him for advice.

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UNIDENTIFIED REPORTER #2: This year, we taught you how to recycle, how to survive a snakebite, even how to meddle in an election. So go to donate.npr.org/planetmoney.

SETH: Be a good kid and you'll get good money.


OK. And you can hear me all right?

RICK ALLEN: Yep. And we've got speed, so anytime you want to start.

GOLDSTEIN: OK. I don't even know what speed means.

ALLEN: Oh, that's video. That means we're rolling. We're recording.


Rick Allen makes videos for a living. He films underwater, stuff like sharks and shipwrecks.

GOLDSTEIN: Thanks for coming in. Big week for you.

ALLEN: It has been quite the week, yeah. It's hard to imagine, even now.

GOLDSTEIN: That it's happening. It's hard to imagine, and it's real life.

ALLEN: After six years, we went to the Supreme Court, so it's just starting to sink in that we actually did that.

CHILDS: Rick has ended up at the Supreme Court because he got into a fight with the state of North Carolina. The fight was over footage Rick had shot of a sunken pirate ship. Rick says the state used his videos without his permission. They had pirated his pirate videos. Sorry. I'm sorry.

GOLDSTEIN: I'm also very sorry.

CHILDS: This case is not just about Rick and the state of North Carolina, though.

GOLDSTEIN: Right. I mean, publishers and songwriters and movie companies and public universities and the governments of 31 states all filed briefs to the Supreme Court in this case, which is to say a lot of people care a lot about how Rick's case goes.


GOLDSTEIN: Hello, and welcome to PLANET MONEY. I'm Jacob Goldstein.

CHILDS: And I'm Mary Childs. Today on the show, pirates, piracy and a fight between two of the strongest forces in American law.

GOLDSTEIN: Also, pirates.

CHILDS: The fight that led Rick Allen to the Supreme Court actually started 300 years ago with the pirate Blackbeard.

ALLEN: OK, so - well, Blackbeard was probably one of the most infamous pirates in history. He really...

GOLDSTEIN: That's a high bar. Like, not just a pirate but, like, especially infamous, even for a pirate.

ALLEN: That is true.

CHILDS: One gets the sense that Blackbeard, like, really wanted his brand to be infamous pirate.

ALLEN: Blackbeard was a master of psychological warfare. He would take a fuse from a cannon and put it twisted into his beard and light that. And they were slow burning, and so there would be this smoke and fire around his face whenever he came up on somebody. I'm sure it was terrible.

GOLDSTEIN: Like the devil - like he's the devil.

ALLEN: Absolutely, he was the devil. And it worked for him.

CHILDS: Merchant ships would see this devil sailing towards them, cannons out, and they'd be like, oh, hey, Blackbeard, go ahead, take all our stuff. Take the ship, too. Blackbeard's bit worked so well that by the year 1718, he had about 400 pirates working for him in a little flotilla of four ships sailing up the coast of America. But then he had a problem. Business slowed. Suddenly, he wasn't capturing so many ships anymore.

ALLEN: Blackbeard had not taken a prize in a while. His pirates had not been paid, and so they wanted a prize. They wanted some money, and he didn't have anything to give them. So in essence, he had too big a staff and needed to cut them. And...

GOLDSTEIN: You can't just fire pirates. They don't take that well.

ALLEN: That's exactly right. You can't fire a pirate. They're not interested in what HR has to say at all.

CHILDS: So Blackbeard had a stroke of HR genius. He crashes two of his ships in shallow waters just off the coast of what is now North Carolina. And he says to, like, half of his pirate employees, y'all just stay here to deal with these ships. And then he ditches them - sails off.

GOLDSTEIN: A few months later, Blackbeard got in a fight with a British navy lieutenant. The lieutenant killed Blackbeard, cut off his head and hung it off the front of his ship. I got your Blackbeard right here.

CHILDS: And those ships that Blackbeard left behind - they sank, disappeared under the water until 1996, when one of the ships - it was called the Queen Anne's Revenge - was discovered in the spot where it's been sitting for almost 300 years, right off the shore of North Carolina.

ALLEN: Within about a mile - mile and a quarter, the water's only 24 to 28 feet deep, depending on the tide. So, yeah, well within eyeshot of the shore.

GOLDSTEIN: The state of North Carolina owns the rights to the ship. It's right there in state waters. And there's a plan to excavate the ship. And this is when Rick Allen makes the deal that is ultimately going to lead him to the Supreme Court.

CHILDS: Rick owns a company that makes underwater videos, and he makes a deal that gives him the exclusive rights to shoot the excavation of the ship. As part of the deal, he's going to pay for the filming out of his own pocket.

ALLEN: I paid for my gas. I paid for my lodging. I paid for my equipment. Paid for my own scuba gear. In a way, I paid for my time because when I was working on the wreck project, I was not taking freelance work.

CHILDS: But Rick did have a plan to profit from his work.

ALLEN: I would own the copyright to all the footage when it was all done, and that was the trade-off.

CHILDS: Rick figured it's literally Blackbeard, a real pirate with the very strongest brand. Every pirate documentary and maritime museum is going to want my footage. The money will come.

GOLDSTEIN: So the deal's done and Rick starts diving on this historic wreck. And it is not amazing.

ALLEN: The first time I went down was like climbing into a washing machine, filling it with tea or coffee and then turning it on. There's a lot of current. The visibility's terrible. So I didn't see a lot of the wreck. I just pretty much hung on for dear life. And then, over the years, I kind of...

GOLDSTEIN: Did you think, oh, my God, what did I get into? I'm supposed to shoot a video and I can't see anything.

ALLEN: (Laughter) That's it.

CHILDS: But he keeps diving Blackbeard's wreck - month after month, year after year. And in spite of the terrible conditions, moment by moment, as they find cannons and intact wine bottles and stacks of pewter plates just sitting there in the sand, he falls in love with it.

There's this one video Rick shot. It's super murky, as usual. And this diver is brushing the sand off this big piece of metal and talking to Rick on the radio.


UNIDENTIFIED SCUBA DIVER: I don't think that's a pewter plate.

CHILDS: And Rick, who's right next to him holding the camera, asks...


ALLEN: What do you think it is?

UNIDENTIFIED SCUBA DIVER: You really want to know?


UNIDENTIFIED SCUBA DIVER: I think it's a pissdale tube.

CHILDS: A pissdale tube - that's what he said. It is a real word.


ALLEN: And what's that?

UNIDENTIFIED SCUBA DIVER: Well, it was part of the sanitary arrangements on the ship - part of the head.

CHILDS: Head is boat for toilet.


UNIDENTIFIED SCUBA DIVER: This may have been the one back towards the captain's cabin. We found one on the HM that looked just like this.

CHILDS: The plates, the cannons, a toilet that may have been Blackbeard's very own toilet - Rick can't get enough of this stuff.

GOLDSTEIN: How many hours did you spend out working on this?

ALLEN: Oh, my goodness. Well, I don't know. We're probably talking about 1,000, 2,000 hours on the wreck site - at least.

GOLDSTEIN: In 2011, after Rick had been working on the wreck on and off for almost 15 years, something very bad happened. There was an accident at his house. An oxygen tank that he used for technical diving exploded in his garage.

ALLEN: Flash burned over my whole body, and my left arm was amputated at the elbow and had a chunk taken out of my left side.

GOLDSTEIN: Rick spent two months in a medically induced coma.

ALLEN: When I woke up, I couldn't hold a plastic spoonful of Jell-O. That's how weak I was. But I made it my goal as soon as I woke up to get back to the Queen Anne's Revenge. And that's what pushed me through all the recovery and the physical therapy and, truthfully, an awful lot of pain to get there and to get back in the water to do something that I love to do.

GOLDSTEIN: And he does it. He starts diving Blackbeard's wreck again. But where his arm used to be, now he has a prosthetic.

ALLEN: I have an iron hand. It's irony upon irony.

GOLDSTEIN: And after all that, everything's fine, at least for a while.

CHILDS: Then, a couple years later, the legal troubles start. First, the state of North Carolina posts some of Rick's underwater photos online without getting his permission. Remember; he owns the copyright. So Rick goes to a lawyer, and they make a deal with the state. The state will take down the pictures and pay Rick 15 grand for the photos it posted.

GOLDSTEIN: Then Rick goes back to filming the wreck until the summer of 2015, when he gets a call.

ALLEN: A friend of mine who's a reporter who covers the state Legislature called me and said, hey, do you know about this? And I'm like, know about what?

GOLDSTEIN: Someone in the state Legislature had just introduced a bill that said, in part, quote, "all photographs, video recordings or other documentary materials of a derelict vessel or shipwreck" - dot, dot, dot - "in the custody of any agency of North Carolina government or its subdivisions shall be a public record."

CHILDS: For Rick, this felt like a law targeting him. He'd given the state something like 80 hours of footage from the wreck to help with the research. But he'd said this footage is only for research. For other uses, I need to get paid. And now here is this bill that says that footage that Rick has spent almost 20 years shooting - all of that is now available for free for anyone who wants to use it.

GOLDSTEIN: Did you try and fight it?

ALLEN: What can I do?


GOLDSTEIN: I don't know. Call your legislator.

ALLEN: I did call my legislator, and that didn't help. So in 15 days, it went from committee to being a state law.

CHILDS: Around the same time, the state also posted some of Rick's videos from the wreck on its YouTube channel without his permission. So Rick sued the state for infringing his copyright. The case bounced through the courts for years, up through the system all the way to the Supreme Court.

GOLDSTEIN: And just a few weeks ago, Rick Allen went to Washington, D.C., stayed at a friend's house, woke up at 3:30 in the morning, killed a few hours. And finally, he went to the Supreme Court.

ALLEN: We're sitting on a bench. We were actually a couple rows back from the actual court itself. And, yeah, and then they call my case, and it's on.


JOHN ROBERTS: We'll hear argument next in Case 18-877, Allen v. Cooper.

GOLDSTEIN: Allen is Rick Allen. Cooper is the governor of North Carolina. Rick Allen's lawyer, Derek Shaffer, spoke first.


ROBERTS: Mr. Shaffer.

GOLDSTEIN: And the first sentence out of his mouth basically sums up Rick's whole argument in the case.


DEREK SHAFFER: Mr. Chief Justice, and may it please the court. When states infringe the exclusive federal rights that Congress is charged with securing, Congress can make states pay for doing so.

GOLDSTEIN: So that first phrase...


SHAFFER: When states infringe.

GOLDSTEIN: ...Refers to the state of North Carolina posting Rick Allen's videos without permission. And then that last phrase...


SHAFFER: Congress can make states pay.

GOLDSTEIN: That refers to a law that is at the center of this case. It's a law that Congress passed in 1990, and it was called the Copyright Remedy Clarification Act. And the whole point of this law was to say explicitly that copyright law applies to state governments just the same way it applies to everybody else in America. In other words, if a state, say, posts your movies without permission, you can sue the state just like you can sue anybody else.

CHILDS: So that is Rick Allen's case. Here is this federal law that applies exactly to our case and that says we can sue North Carolina for damages for posting our copyrighted Blackbeard videos without permission. And this case made it all the way to the Supreme Court because the way the court rules will affect a lot of people who create stuff. Groups representing publishers and movie companies and news organizations and radio stations all filed briefs supporting Rick in his case because they all want to be able to sue states if the states use their copyrighted work without permission.

GOLDSTEIN: After the break, North Carolina's counterargument comes down to this. That federal law that Rick's whole case is built on - it's unconstitutional and the Supreme Court should strike it down.

CHILDS: North Carolina's case was argued by Ryan Park, who works in the state attorney general's office.


ROBERTS: Mr. Park.

RYAN PARK: Thank you, Mr. Chief Justice, and may it please the court.

CHILDS: So remember how Rick Allen's lawyer made his whole argument in a first sentence? North Carolina's lawyer did him one better. He did it in the first three words.


PARK: State sovereign immunity is a fundamental feature of our Constitution's structure.

CHILDS: State sovereign immunity - that's it. That's North Carolina's whole case.

GOLDSTEIN: And it is a pretty strong case. I mean, those three words were enough to convince a federal appeals court to find in favor of North Carolina. They were enough to make it all the way to the Supreme Court.

CHILDS: So here's what state sovereign immunity means. State is just any state in the union.

GOLDSTEIN: The easy part.

CHILDS: Yeah, that's done. Sovereign immunity means, in general, you're not allowed to sue the federal government or the state government for damages. You can sue them to make them stop doing something. You can get an injunction. But you can't make them pay for what they've already done.

GOLDSTEIN: So that is what sovereign immunity is. And it goes back hundreds of years to England when the sovereign was the king or the queen. And you could not sue the sovereign. You could not sue the king or the queen. But, of course, this is not England. We don't have a king or a queen. The whole point of America is that nobody is above the law. And yet, sovereign immunity is still this big deal in American law. It still comes up regularly in Supreme Court cases.

And, like, this was a little mystifying to me. I had never heard of it before we did this story. And as we were reporting it, I kept asking people, like, why? You know, why is this still a thing in America? And the answer kept coming back to this one word, money. Ryan Park, the North Carolina lawyer, said it this way in his oral argument.


PARK: I think the important understanding that the founders had is that when you sue a sovereign, on the opposite side of the judgment are the people and the people's money.

GOLDSTEIN: In other words, when you're suing the state, you are suing the people. You are suing us. You know, you're suing for our taxpayer dollars. And we, the people, should be allowed to decide when and whether we're on the hook for damages in court.

And to be clear, sometimes states do say, OK, you can sue us for damages in these specific cases. Like, for example, a lot of states have passed special laws that say, yes, if a state employee is driving a state vehicle for work and they're driving crazy and they crash into you, you can sue the state for damages in those cases.

CHILDS: But in Rick Allen's case, North Carolina didn't say that. They didn't waive their immunity. The core of North Carolina's argument was just, you can't sue us for money damages because we, the sovereign state, have sovereign immunity. And that law that Congress passed that says otherwise - it's unconstitutional. It's the federal government stepping on state sovereign immunity. It violates states' rights.

GOLDSTEIN: So this is why state universities and public libraries and 31 state governments all filed briefs in support of North Carolina. Because they all think states, not the federal government, should get to decide when state taxpayers are on the hook for copyright violations. And that is the argument Ryan Park was making before the court.

And then at some point, Justice Stephen Breyer broke in with this, like, absurd hypothetical. He said, OK, suppose North Carolina wins. Nobody can sue a state for damages for infringing copyrights. In that universe, why wouldn't some state just say, oh, we've got this great moneymaking idea.


STEPHEN BREYER: What the state decides to do with its own website, charging $5 or something, is to run "Rocky," "Marvel" - whatever...

GOLDSTEIN: We're just going to pirate a bunch of movies and stream them online and charge people five bucks to watch it.


BREYER: ..."Spider-Man" and perhaps "Groundhog Day," all right? Now...


BREYER: ...Great idea. Several billion dollars flows into the Treasury, OK? Now, if you win, why won't that happen?

CHILDS: Ryan Park's answer was partly, well, a movie studio could go to court and get an injunction to make the state stop pirating its movie.

GOLDSTEIN: And here's how Breyer responded to that.


BREYER: Oh, it's - by the way, we ran it yesterday. You can have your injunction.

GOLDSTEIN: The tension at the heart of this case comes down to a fight between states' rights and property rights. These are two very deep, very powerful rights in American law. And there has been this series of Supreme Court cases like Rick Allen's over the past few decades, where the court has tried to figure out when is it OK for Congress to step in and essentially take away states' sovereign immunity in order to protect citizens' property rights. And the oral argument in this case was the court advancing this debate one more step.

Obviously, nobody knows how this case is going to come out. I certainly have no idea how it's going to come out. But as I listened through it, I got the sense that the justices were trying to figure out how to find in favor of Rick Allen but in a narrow way that protects the states and the state taxpayers and doesn't entirely blow up sovereign immunity.

CHILDS: And then an hour to the minute after it began, the oral argument was over.


SHAFFER: Thank you.

ROBERTS: Thank you, counsel. The case is submitted.

GOLDSTEIN: Rick Allen walked out of the room, gave a few interviews on the steps of the Supreme Court and went home to North Carolina. He's been going through footage he shot this summer - sharks in the Cayman Islands, some wrecks, but nothing from Blackbeard's ship. He hasn't shot any footage of Blackbeard's ship since 2015, when his fight with the state got ugly.

CHILDS: The Supreme Court's opinion is due by the end of its term, which means that Rick Allen and the state of North Carolina will get their answer on or before June 20 of next year.


GOLDSTEIN: I love doing episodes about Supreme Court cases. There are lots of other Supreme Court cases. If there's one you want us to do a show about, email us at planetmoney@npr.org or find us on Twitter or Instagram. I think we're still on Facebook.

CHILDS: Liza Yeager produced this episode. Our editor is Bryant Urstadt. And our supervising producer is Alex Goldmark.

GOLDSTEIN: Special thanks today to superproducer Nick Fountain, who has been following this story for a while. Also, thanks to all the lawyers who helped us get a handle on the legal details, Jonathan Band, Scott Keller, Ernest Young and Carlos Vazquez. I'm Jacob Goldstein.

CHILDS: And I'm Mary Childs. This is NPR. Thanks for listening.


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