Bootlegacy: Liz Nevis on intellectual and cultural property

Subsection Arrr: Did pirates really have Codes?

Elizabeth Nevis — Mon, 16 Jul 2007 00:21:46 +0000

Several authors, including an economics professor, are pretty sure they did. Even the snooty-booty New Yorker has noticed, although New York is far more famous for “corporate pirates” who would have been useful to their high-seas counterparts only as ballast or sharkbait. (BTW, many thanks to Keith Nagel, author of highly useful patent-perusal program IPDiscover, for bringing this article to my attention).

These authors are probably right. Piracy is largely an organized crime; pirate chieftains like Blackbeard, Jean Lafitte, Grace O’Malley, and Madame Chiang commanded sizable fleets. Organizations have to have rules if they want to grow and achieve.

Don’t get me wrong; pirates were (and still are) “not very nice persons at all.” They stole ships and their cargo for personal gain, took prisoners for ransom or slave-price (or addition to the crew if sufficiently useful), and killed anyone who got in their way. Not like, for instance, national navies and letters of marque, which confiscated suspected enemy ships and their cargo as prizes shared by the crew, took prisoners for exchange or impressment into service, killed anyone who got in their way, and were sanctioned by governments and mostly financed by taxes.

My point -and I do have one - is that 17th- 18th-century pirate codes reveal a professional culture exhibiting much more democracy, safeguards for dispute resolution, and merit incentives at all levels than could be found in most governments of their age, and far more than can be found in most legitimate business ventures of our own time. They could certainly be a model for contractual relationships among salvagers and others who, albeit within the local law, profit from things that they find (rather than make or buy).

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For National Maritime Day: Whose Turf is Under the Surf?

Elizabeth Nevis — Wed, 23 May 2007 06:46:01 +0000

OK, so you want to look for sunken treasure - be it monetary, historical, or both. (Or you find out someone else is doing it, you don’t think they should, and you want to see if you can stop them).

You’re in luck, sort of.

The bad news for underwater artifact-hunters is that unless the body of water is completely surrounded by private land, you’ll probably have to get permits from, comply with the regulations of, and possibly split the loot with, some government or other. Even if it is on private land, some environmental laws may still restrict what you can do. The good news (for both hunters and their opponents) is that now it’s well settled which governments have jurisdiction where. This issue was hotly contested between the coastal states and the federal government in the two-decade U.S. v. Florida series of cases.

I’ve prepared a diagram* that shows the types and extents of underwater government jurisdiction in the United States. Click the thumbnail image below to enlarge it:

*All clip-art used by permission of Jupiter Images (subscription when the images were downloaded, + non-commercial use).

Curse of the Atocha Part 3: Collateral Damage

Elizabeth Nevis — Wed, 23 May 2007 05:41:50 +0000

In Parts 1 and 2, we heard about the legal travails of Treasure Salvors, Inc., who found and salvaged the wreck of the Nuestra Senora de Atocha. But the curse of curios-in-curiae didn’t end there: even buying, owning, selling, or donating Atocha artifacts had legal ramifications.
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Curse of the Atocha Part 2: Mosquitoes Among the Alligators

Elizabeth Nevis — Tue, 08 May 2007 21:25:40 +0000

As you’ll have seen in Part 1, the Atocha shipwreck salvage story is a humdinger. It has it all: adventure, wealth, greed, betrayal, violence . . . constitutional interpretation . . . civil procedure . . .

When you’re up to your a** in alligators (or allegations, or litigators), you may not notice the mosquitoes right away, but they’re biting you all the same. While all the federal-court Atocha lawsuits were working their way to the Supreme Court and back, Treasure Salvors, Inc. (TSI) had several investor-contract disputes demanding its attention as well, mostly in state court. Most of theopinions were unpublished or outside the scope of my database subscriptions, and I welcome comments from anyone who knows more about them.

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Curse of the Atocha, Part 1: In Rem, Ad Nauseam

Elizabeth Nevis — Thu, 26 Apr 2007 20:05:56 +0000

This is me in 1994 with treasure hunter Mel Fisher, who salvaged the wreck of the Spanish treasure ship Nuestra Senora de Atocha. Mrs. Fisher customarily took pictures like these whenever a visitor to their Treasure Museum (now the Mel Fisher Maritime Heritage Museum) in Key West* bought a gold 8-reale coin (”piece of eight”) from the ship’s haul while she and Mel happened to be in town. That was what I’d just done; that’s my “I’ve been SCUBA diving all morning, wandering around in the sun all afternoon, and now I just spent a pretty big (for me) wad of cash” slightly poleaxed smile. That’s also one of the Atocha’s gold chains around my neck (just for the picture); who knew the Spaniards of 1622 blinged themselves out like the rappers of 1985?

Not until ten years later, in law school, did I learn that this shipwreck was the centerpiece of a litigation train-wreck. There were too many lawsuits to describe in even one of my awfully-long posts, so I’m having to serialize. In stories, sunken and buried treasures are often cursed (I mean “with bad mojo,” not “by people trying unsuccessfully to find them”). But the usual curse symptoms are violent death, or insanity, or something similarly speedy and dramatic. Upon reflection, though, “a long, tangled string of lawsuits on whomsoever disturbs this place” is a pretty good curse.

And, like someone seeing a train wreck, I couldn’t look away.

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