Tuesday, March 24, 2020

SUPREME COURT SCUTTLES BLACKBEARD COPYRIGHT CASE

    24 March 2020: Well! How times can change in the space of 1 week! The whole world is on lock-down, everyone is "self-isolating" and shops, restaurants, and entertainment venues are closed up tighter than a spinster's purse! Fortunately, the gun shops and liquor stores remain open and well-stocked. (at least here in the USA,) but don't try to find toilet paper; that seems to be in very short supply even though the Covid-19 bug does not seem to require an abundance of that product. Who knows what drives people!? Here endith this week's rant! Let us move on to the subject at hand.

    While the following is not completely maritime, it does speak to a maritime issue and one that we had posted on a couple of months ago.
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    Ruling unanimously in favor of states' rights on Monday, the U.S. Supreme Court said that a videographer who spent two decades documenting the salvaging of Blackbeard's ship cannot sue the state of North Carolina in federal court for using his videos without his permission.

    Although the decision had more to do with mundane copyright law than the law of the high seas, it was a victory for states claiming immunity from copyright infringement lawsuits.

    The case before the court began with the 1996 discovery of the sunken remains of a French slave ship captured by the infamous pirate Blackbeard in 1717, and renamed by him The Queen Anne's Revenge. The vessel became the pirate's flagship. With 40 cannons and 300 men, it sailed around the Caribbean and up the U.S. coast. But in 1718, just a year later, it ran aground just a mile off Beaufort, N.C., and sank.

    There she lay undisturbed for some 300 years until 1996 when the shipwreck was discovered by a marine salvage company named Intersal, Inc. There was no dispute that under federal and state law, the remains belonged to the state. So North Carolina commissioned the salvage company to take charge of the recovery operation, and the company, in turn, hired Frederick Allen, a local videographer, to document the operation. Which he did, "at considerable risk," for the next two decades — all the while copyrighting his work so that it could not be used without his permission.
     The state of North Carolina, however, began posting some of Allen's photos online, without permission or paying royalties. In 2013 the state paid Allen $15,000 for one such infringement, but its violations persisted. Ultimately Allen sued in federal court for copyright infringement.

    The state claimed it was immune to such suits because over the last quarter century the Supreme Court has ruled that in general individuals cannot sue sovereign states without their permission in federal court. Allen countered that the copyright provisions of the Constitution trump that general rule when combined with other rights-enforcement provisions in the Constitution.


    But on Monday (23 March), the Supreme Court ruled unanimously against Allen and for the state's immunity from such federal lawsuits.

    Writing for the Court, Justice Elena Kagan pointed to several precedents over the past 26 years in which the justices have barred such lawsuits. True, she said, Congress had explicitly and clearly enacted legislation allowing such federal lawsuits.[emphasis added; ed] But that legislation was enacted before the Supreme Court had begun reading the 11th Amendment to bar such suits. [huh?:ed]

    Mainly, though, the court's opinion was couched in terms of deference to precedent--namely in this case, the precedents of the last 26 years. "To reverse a decision, we demand a special justification over and above the belief that the precedent was wrongly decided," Kagan wrote. "And Allen offers us nothing special at all."

    Although the decision was unanimous, there were two concurring opinions. Justice Clarence Thomas refused to join those sections dealing with deference to precedent. And Justice Stephen Breyer, joined by Ruth Bader Ginburg, joined "in the judgment." More on that shortly.

    Writing for himself and Ginsburg, Breyer noted that he had long disagreed with the decisions barring individual lawsuits against state governments. "One might think that Walt Disney Pictures could sue a state (or anyone else) for hosting an unlicensed screening of the studio's blockbuster film, Pirates of the Caribbean (or any of its many sequels.) Yet the court holds otherwise," he wrote.

    Breyer had a little fun at Kagan's expense, declaring that in his view, under the Constitution Congress may, as it did in this case, require states that "have pirated intellectual property...to pay for what they have plundered. "



    Referring to Kagan's suggestion that a "more tailored" congressional effort to legislate in this area might pass constitutional muster, Breyer observed that is "anyone's guess."

    Nonetheless, he said, "recognizing that my longstanding view has not carried the day, and that the court's prior decision" in a similar case "controls this case, I concur in the judgment."
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    So, it would appear that the copyright protection offered by the U.S. Constitution is null and void, if a state needs it to be. So, what about an individual? How about a town or county? Seems like someone erred in this case. But there are no lawyers on our staff here at Maritime Maunder so we shall defer to the highest court in the land!

    Until next time, (unless we succumb to the Covid bug)

                               fair winds, 
                                    Old (and so far, healthy) Salt

Monday, March 16, 2020

ASTONISHING (POSSIBLY) PRE-INCA TREASURE

16 March 2020: Well, it looks as though the whole world is coming apart and unglued over the most recent outrage - the corona virus 19 - or "covid 19" as it is shortened. The press - internationally - is consumed with the potential of this flu-like malady and while the actual numbers, worldwide, are infinitesimal, the purveyors of universally bad news continue to frighten the population into lemming-like behavior. As a matter of actual fact, the percentage of the world wide population stricken with the Covid 19 flu is .00202% and the death rate has yet to move the needle. (I actually did the arithmetic) People are buying and hoarding any supplies they can get their hands on, including, of all things, toilet paper (apparently, excessive use of the toilet is NOT a symptom of the disease) but nonetheless, someone started it and the lemmings are following along. Whole cities are shutting down, people are confined to their homes, the worldwide economy has pretty much ground to a halt. What does the future hold? We have not a clue, but it is clearly not the end of the world. Hang in there folks! We'll get through this with the exercise of a bit of common sense. 
So much for the editorial which, admittedly, has nothing to do with the maritime world, ships, the ocean, or anything we typically bring you. Sorry, but I had to vent. Now, on to today's news (maritime)!

From Histecho.com (an archeological on-line publication), the following:

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A possible old Peruvian artifact was found by an undersea treasure hunter near Melbourne beach which could have been transported by the doomed 1715 Spanish Plate Fleet.
Mike Torres, chief technology officer at Seafarer Exploration, said. I found the item on Jan. 14 at the pre-dawn darkness. “I thought it was scrap. I thought it was a NASA scrap, honestly. I thought it was a piece of an aircraft,”
The circular copper relic has a picture of a bird-like figure and is about 10 inches in size, bordered with intricate patterns, John de Bry, director of the Center for Historical Archaeology in Melbourne Beach, said the object may have once been gold-plated.

De Bry has studied the 1715 Plate Fleet — which takes its name from “Plata,” the Spanish word for silver — since the late 1960s. Eleven of the 12 ships in the fleet were lost in a hurricane on the coast of East Central Florida.
After examining the object Thursday at his home office, de Bry suspects it is the top portion of a headdress from a burial site dating to the Moche civilization, which flourished in Peru from about 100 to 700 A.D. — centuries before the Inca Empire.
“The close proximity of a 1715 shipwreck — especially one that might be the ConcepciĆ³n from Tierra Firme, South America — seems to explain the presence of this particular artifact,” de Bry said, peering through a magnifying glass at the metal artwork.


Seafarer Exploration is a Tampa-based company that explores, documents and recovers historic shipwrecks. Since 2014, the Florida Bureau of Archaeological Research has permitted the firm to search for artifacts in the Melbourne Beach area.


In 2004, divers discovered an iron cannon that may have belonged to the fleet off the Melbourne Beach shoreline. Subsequent expeditions yielded silver platters, a flintlock pistol, ship timbers, and other artifacts.

Torres called Jan. 14 to find the most significant in his company’s history.
He declined to divulge details about the shipwreck location. He also said he has no plans to sell the object and declined to speculate on its value: “How would you price that? I don’t know.”

Seafarer Exploration has contacted archaeologists with Columbia University, Harvard University and Tulane University.

Torres said spectrometer measurements show the metal artifact is 90 percent copper and 7 percent iridium, with trace amounts of gold and silver.

Torres — a former adjunct professor of aerospace engineering at MIT — said he employed satellite imagery and new software that he developed to pinpoint ConcepciĆ³n’s twin debris trails. Each debris trail stretches about 1.5 miles. He said he discovered the mystery object during his software’s first field test.
The 1715 Spanish Plate Fleet carrying gold and silver met disaster when a fierce July hurricane struck Florida’s East Coast.


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  Now that's much more interesting than getting the flu-like symptoms of Covid-19! Should more info appear on the ongoing exploration of the Concepcion's wreckage, we will try to bring it to you.
Until then, maintain your "social distance" and wash your hands - often!

                       Fair winds, 
                               Old Salt

Monday, March 9, 2020

MORE CONTROVERSY ON THE WRECK OF TITANIC

9 March 2020: In late January, we published a piece on the controversy surrounding the wreck of Titanic which dealt with protecting or salvaging it. Once again, someone wants to salvage (pillage?) part of the wreck on the theory that the rate of deterioration will cause the entire wreck to disappear in a short time. Following is from Fox News, AP, and CNN:

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A wireless telegraph machine, sometimes called the "voice of the Titanic" for its role in sending out distress messages on the fateful night in 1912 when the RMS Titanic cruise liner hit an iceberg, could be recovered from the shipwreck lying at the bottom of the North Atlantic.

But not everyone is on board with this plan: One of the scientists behind the recovery plan says he is shocked by the "outpouring of contempt" that the proposal has generated among critics.
Oceanographer David Gallo, formerly of the Woods Hole Oceanographic Institution (WHOI) in Massachusetts and now a consultant for the court-approved salvager of the shipwreck, RMS Titanic Inc., said the proposal was an attempt to save the iconic artifact before it was lost forever.

The company had expected some opposition to their recovery plan, but it was not prepared by the sometimes "outrageous" and misinformed negative reaction, he said.
"I've been called a greedy treasure hunter, a grave robber," Gallo told Live Science. "I find these charges to be personally insulting."
The Marconi wireless telegraph machine sent out frantic distress calls on the night of April 14 and 15, 1912, after the ship hit an iceberg in the North Atlantic and started to sink. Only about 700 of the more than 2,300 people on board survived.

Underwater video taken last year showed the "Marconi Room" on the Titanic's boat deck is badly corroded by rust and collapsing, and that the machine could soon be unrecoverable, Gallo said.
The company has proposed that an expedition to the wreck later this year could use underwater robots to cut the telegraph machine free. But their bid to get approval from a U.S. federal court has been opposed by the governments of the United States and United Kingdom, which assert the Titanic shipwreck is now protected by an agreement between the two countries, CNN reported.

RMS Titanic Inc. was established in a U.S. federal court in 1994 as the official salvager of the Titanic wreck and the steward of artifacts recovered from it. But the court ordered in 2000 that nothing should be cut or detached from the wreck. [emphasis ours - ed.]
The company has now asked the court to modify that order to allow the recovery of the telegraph machine, and U.S. District Judge Rebecca Beach Smith has asked for time to consider the proposal; she's expected to give her decision in the next few weeks.
Lawyers for the National Oceanic and Atmospheric Administration, a U.S. government agency, told the court that the proposal was a "placeholder" for future requests to cut other artifacts from the Titanic shipwreck, according to the Associated Press.

They also presented a letter from the Joint Nautical Archaeology Policy Committee, a non-governmental body that represents several U.K. maritime archaeology groups, alleging that the case for recovering the telegraph machine is "exaggerated," the Telegraph reported.
Gallo counters that the company is motivated by its responsibility to the legacy of the Titanic and not by financial gain.
Using underwater robots to cut the telegraph machine free and recover it would cost between $5 million and $7 million, which is many times what the company could hope to recover from entry fees to its exhibitions of Titanic artifacts, he said.
Scientists have noted that the shipwreck — which has now been under more than 2 miles (3 kilometers) of seawater for more than 100 years — is deteriorating rapidly from rust and the activity of deep-sea microorganisms.
Some think it could disappear completely in a few years, Live Science has reported.
some artifacts recovered in the past
Lost at sea
In 1985, a French and American expedition co-led by WHOI oceanographer Robert Ballard discovered the Titanic wreck. Gallo joined WHOI a few years later and initially spoke out against the salvage of artifacts by RMS Titanic Inc., arguing that they should be left on the shipwreck.

But he changed his mind after visiting one of the company's exhibitions of Titanic artifacts: "I was amazed at what I witnessed. Whole families visited the exhibits … I realized the powerful way artifacts can ignite the imagination."

Gallo started working as a consultant for RMS Titanic in 2009, after the original company declared bankruptcy and their assets were bought by new investors who were committed to preserving the Titanic's legacy, he said.
He stressed that the proposal to recover the telegraph machine, if it goes ahead, would only cut away a few square feet (meters) of metal and would not threaten the integrity of the shipwreck, but it could save the telegraph machine for the future, he said.
"We have two choices," he said. "Leave the telegraph machine to the ocean and perhaps lose the 'voice of Titanic' forever, or recover and conserve the telegraph so that it lives on forever."
Concerns that the shipwreck should be left as a "mass grave" were perhaps misinformed about the realities of the shipwreck, he said.

Most of the more than 1,500 people who died in the Titanic's sinking froze to death in the water on the surface, and no one has ever seen any human remains inside the ship, he said.
All the same, expedition members treated the wreck with respect, as if it was a grave — but that should not preclude efforts to save some of its artifacts from destruction, he said.
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We'll see where this goes and should RMS TItanic, Inc. win it's suit to retrieve the Marconi wireless set, we will let you know. Again, both sides of this agreement have merit and I can see why the judge in the case needs time to render her decision. 

Until next time,

                                     Fair Winds, 
                                              Old Salt