The U.S. Supreme Court will use the case of a sunken pirate ship to review a shipwrecked 1990 law that purported to abrogate states' sovereign immunity from copyright suits.

But if the court actually upholds the law, it will be one of the all-time Supreme Court upsets.

The court has already struck down related laws that apply to patent and trademark infringement. Every appellate court to consider the matter has ruled for the states. And two different administrations have formally declined to defend the statute.

Monday's cert grant in Allen v. Cooper arises from “Blackbeard's Law,” a 2015 North Carolina law that explicitly permits the state to display photos and video from the salvage of the Queen Anne's Revenge, a pirate ship operated in the 18th century by Edward Teach, aka Blackbeard.

Intersal Inc., a private research company, had discovered the remnants of the ship in 1998. Because the wreck was technically property of North Carolina, Intersal formed a contract with the state to share the salvage rights. It provided Intersal the exclusive right to market all video accounts of salvage-related activities, except for a non-commercial educational video.

Intersal in turn brought aboard videographer Frederick Allen, who spent more than a decade shooting video and still images documenting the underwater shipwreck and the efforts of divers and archaeologists to recover various artifacts from it. Allen registered 13 works with the U.S. Copyright Office, each covering a year's worth of footage.

Allen became concerned in 2013 that the North Carolina Department of Natural and Cultural Resources was displaying his works on its website. A settlement agreement provided that the department would display only non-commercial digital media bearing a watermark and a link to the department's, Intersal's and Allen's websites.

But in 2015 the North Carolina legislature enacted “Blackbeard's Law,” a statute that makes public “all photographs, video records, or other documentary materials of a derelict vessel or shipwreck,” among other things.

Allen sued, demanding $8.2 million. He pointed out that Congress abrogated state sovereign immunity from copyright suits with the Copyright Remedy Clarification Act of 1990. But the U.S. Court of Appeals for the Fourth Circuit held that law unconstitutional. The court pointed to Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, a 1999 decision in which the Supreme Court struck down the Patent Remedy Act, a similar attempt to eliminate state sovereign immunity from patent suits in 1992. “Our conclusion is required by Florida Prepaid, where the circumstances were analogous to those before us,” Fourth Circuit Judge Paul Niemeyer wrote.

Allen has enlisted a Quinn Emanuel Urquhart & Sullivan team, with partner Derek Shaffer acting as counsel of record, and received amicus support from copyright scholar David Nimmer, former Register of Copyrights Ralph Oman and the Recording Industry Association of America.

Shaffer acknowledges there's no circuit split, but argues in his cert petition that it's customary for the court to review decisions striking down federal statutes. He argues that Article I, Section 8's authorization of Congress to grant patents gives it the power to restrict state sovereign immunity in that area. “This petition offers the court the chance to correct widespread misinterpretation of its relevant precedent,” he writes.

North Carolina Attorney General Josh Stein argues in response that the federal courts and the Justice Department all agree that the Copyright Remedy Clarification Act is unconstitutional. “This striking consensus—one that spans numerous courts and multiple administrations—shows that this court's review is not needed to ensure uniformity of federal law,” Stein argues.