One of the issues that we've been discussing on Techdirt since the very beginning is the big question of how do you determine proper jurisdiction on internet related lawsuits, since the internet is accessible anywhere. Over the years there have been different rulings and different thoughts on this, but it's not clear there are good answers. The worst idea, of course, is suggesting that because something is available anywhere, it's subject to all rules. That creates a least common denominator setup, in which the absolute most restrictive rules win out around the world. That would hinder innovation tremendously. Almost as bad is the view that the US government appears to take, which is that the US's rules matter on most of the internet, because the major URLs of the internet (such as .com) are managed by a US company. That's pretty crazy, and is going to lead to serious international problems in the long run. I think a more reasonable (though far from perfect) test is simply an analysis of (1) where the actual business is located and (2) where the servers are located. It seems reasonable to focus mainly on where the company is located, and as a secondary measure, look at where the servers are located, and then use that for jurisdiction.

But, of course, when you're dealing with multiple parties, there can be questions of multiple jurisdictions. In the US, when there's a dispute over jurisdictions, such as when a declaratory judgment is filed for in one district, and the other party wants to file the lawsuit in another district, efforts are made to explain to the court that first got the case which district is best, and the court then decides to keep the case or boot it to a different district. But what happens when there are international jurisdiction disputes?

TechCrunch alerts us to a fun case in which Zynga (who has a well known history of copying other company's games) sued a Brazilian startup named Vostu, which it accused of copying its games. Personally, I think Zynga should shut up and not open up such a can of worms that might come back to bite it as well, but Zynga seems to be focusing a lot on being a legal bully lately. Either way, it filed lawsuits in both the US and in Brazil. While the US court, as typically happens, was taking its sweet time, the Brazilian court actually ruled in favor of Zynga (against the hometown favorite) and issued a preliminary injunction, telling Vostu to shut down within 48 hours.

And here's where things get interesting. This woke up the US court (at the request of Vostu), who has ordered Zynga not to enforce the Brazilian decision. As the court notes, it wants to "maintain the status quo" until it has a chance to decide the preliminary injunction question. Furthermore, even as Zynga argues that the two lawsuits are separate, as one covers Brazilian copyright law and the other covers American copyright law, the US court points out that the impact of the Brazilian ruling will hit the US as well:

But one clear policy that all federal courts recognize—even those which have been loath to interfere with foreign proceedings—is the need to protect the court’s own jurisdiction.... The Brazilian injunction evidently purports to restrict all use of the works in suit everywhere. It appears that enforcement of the exceptionally broad Brazilian injunction would prevent this Court from meaningfully adjudicating the claims of U.S. copyright infringement in this case.

As the court notes, allowing the Brazilian injunction to go forward could harm the US court's ability to decide the case... and, by the way, it notes that Zynga filed in the US first, and should wait for the US court to weigh in:

The injunction issued in the Brazilian action is a grim backdrop against which to consider issues of comity. To be sure, Brazil has an important interest in enforcing its copyright laws. But Zynga—which chose the U.S. forum first—now seeks to enforce an injunction it obtained abroad that would paralyze this Court’s ability to decide this case. Comity norms do not abide such a result.

It will be interesting to see if this cross-border dispute goes much further, because I would expect that we're going to see a lot more international jurisdiction battles in the near future, and how courts deal with these could become a very big deal.

In the ongoing mess that is Righthaven's many lawsuits, we're still waiting for the judge in Colorado who's put all of the Righthaven cases there on hold to see if he agrees with the multiple Nevada rulings that found that the transfer of copyrights to Righthaven was a complete sham on the court. One of the defendants sued in Colorado has filed a motion in the court, via the Randaza Group (who has had some success in other Righthaven cases in Nevada), which is very much worth reading.

Beyond another attempt to convince the court that Righthaven's copyright transfer claim was a sham, it highlights that Righthaven's response to the court seems to focus heavily on the idea that the judge should only rule on the jurisdiction issue, rather than on the merits of the case. This filing suggests that Righthaven is doing that, knowing that it's likely to lose, and knowing that if the ruling is on the merits it risks additional sanctions -- so it's pre-fighting that:

In short, Righthaven knows full well that it does not have the right to bring this case. Instead of conceding that point, Righthaven is unnecessarily prolonging this litigation. In doing so, Righthaven wants this Court to believe that if a party brings a case, which it had no right to bring, then it should suffer no consequences, should pay no attorneys fees, and should simply be able to walk away – even after causing the defendant to expend thousands of dollars in attorneys’ fees. Righthaven wins one thing in this case – it wins the chutzpah award.

The rest of the filing is in that same tone, which makes it both highly readable and entertaining. How often do you see legal filings that (repeatedly) quote Mamet's Glengarry Glen Ross?

In Glengarry Glen Ross, Ricky Roma says to George Aaronow, “Always tell the truth – It’s the easiest thing to remember.” Had Righthaven followed this simple bit of wisdom, it would not find itself in its current thicket of predicament in Nevada, and it might find its fortune in Colorado to be more promising.

Righthaven’s scheme is based upon “Assignments” of copyrights from news entities to itself. When such assignments are honest and bona fide transfers of rights, they are remarkably simple – the copyright owner simply transfers all title to the copyright to the new owner. Righthaven’s scheme is much more complex, because there is so much dishonesty to obfuscate. In 1992, Glengarry Glen Ross was made into a film with the tagline “Lie. Cheat. Steal. All In A Day's Work.” Righthaven should have watched the entire film and learned from Ricky Roma; instead it relied upon the tagline and has lied, cheated, and stolen from dozens of hapless defendants in Nevada and in Colorado. That conduct ends in Colorado with this Reply Brief.

While many courts had pretty clearly rejected attempts by various mass lawsuit filing "anti-piracy" law firms to sue a ton of people in a single lawsuit, we were surprised and dismayed back in May to see one judge allow subpoenas to go out on all 23,322 IP addresses sued by US Copyright Group over file sharing on the movie The Expendables. Considering how many courts had challenged such bundling, it was truly surprising that this court allowed it. However, after making that initial ruling, the judge noted that "several issues... have recently come to light regarding this case," and changed his mind. He pointed to the serious jurisdictional questions, considering that most of those sued were probably not in the DC area and ordered USCG to show why the jurisdiction was proper.

Apparently it failed to do so. The judge has now said that the vast majority of the IP addresses in the lawsuit do not appear to originate from the DC area and thus should not be in the lawsuit. TorrentFreak calculates that 23,238 of the 23,322 IP addresses appear to originate from elsewhere. Nice to see another judge recognize the problems of such mass lawsuit filings with little basis, even if he came a little late to it.

We've covered the legal battle between Andrew Ainsworth and George Lucas for a few years now. If you don't recall, Ainsworth apparently designed the original stormtrooper costumes for Star Wars. He then tried to sell replicas that he made, but Lucas claimed copyright over the outfits. Ainsworth had been consistently winning, and that continued right up to the Supreme Court. The court has ruled in favor of Ainsworth, but the reasoning is a bit convoluted. First, the court still says that he violated US copyright laws -- which we'll discuss below. In this case, that really hasn't been an issue, because earlier courts had ruled the same thing. However, it was deemed meaningless since he didn't have sales in the US (and now refuses to sell to the US). As for the UK, the court said that as a costume, it gets a 15-year copyright (from the date it was marketed), meaning the copyright has now expired. I was unaware that the UK had special 15-year copyrights for certain items.

While most folks are focusing on the fact that Ainsworth "won," the whole part about the UK Supreme Court feeling qualified to judge whether or not something is infringing in the US may turn out to be the bigger story:

The decision is important for business because it clears up a long-running controversy over whether U.K. courts can decide if non-U.K. copyrights have been infringed, said Nigel Jones, a lawyer at Linklaters LLP in London.

“That uncertainty has now gone,” Jones said. “If you want to sue here, that is good news. If you want to avoid being sued here, it may be less welcome.”

Yes, get ready for copyright tourism lawsuits to go with libel tourism in the UK. In fact, others are now predicting "a flood of copyright lawsuits" are about to be filed in the UK. I'm still at a loss as to why the UK feels that it has any jurisdiction whatsoever concerning copyrights outside of its borders, but I fear that we're going to see a lot of unfortunate lawsuits because of this.

We've been covering the absolutely ridiculous attempt by the US government (mainly ICE and the Justice Department) to extradite former TVShack admin Richard O'Dwyer from the UK to the US to face criminal copyright charges. This is absolutely shameful for a variety of reasons, including the fact that sites quite similar to O'Dwyer's have been found to be perfectly legal in the UK, and the US appears to be using highly dubious claims in its reasoning for extradition. Even worse, the Justice Department and ICE are clamped up tight on this one, refusing to make any on-the-record comments about this attempt to take a kid, who doesn't appear to have done anything against the law, and drag him across the ocean against his will to put him on trial for criminal charges.

TorrentFreak has the (admittedly, extremely biased) thoughts from O'Dwyer's mother on the whole situation. It's really heart-breaking to think that the US government can be so actively destroying this family, despite an incredibly weak case.

As the ICE agents left they shook his hand and said “Don’t worry Richard you won’t be going to America”. Actually “going to America” had never entered Richard’s head! The same day Richard closed down the website himself.

On attending with Richard to answer bail in May this year when we expected he would either be charged or questioned further, he was told by the Police that the criminal investigation in the UK had been dropped. He was then told that he was going to be rearrested as they now had a Warrant for his Extradition to the US!

[....]

I am most concerned about Richard being in jail in America with no access to his family or friends. Given the current economic climate along with the distance it would not be feasible for anyone to be able to visit him if he were in jail in the US. The idea of having to spend around £1500 or more in air fares and hotels etc. in order to visit my son for one hour in a US jail is ridiculous and prohibitive. This is in total breach of his Human Rights, rights which other non – British subjects are afforded in the UK even some who have allegedly committed serious crimes

[....]

From a personal perspective this trauma has totally taken over my life. I hold a responsible senior position as a Specialist Nurse for Terminally ill children. My job requires me to advise other professionals and parents regarding strong medications for children.

I need to concentrate on my job and to be able to function at a high level. Since this nightmare came into our family I have been unable to work due to being off sick due to the stress. My concentration and level of functioning have been greatly affected to the degree that I would not be safe to do my job.

You really should read the whole thing.

And, really, who is this helping? At all? TVShack didn't host any of the content. It's still very much out there, and tons of others are linking to that very same content, much of which you can find with a simple Google search. So destroying this family doesn't stop or even slow down the infringement. It does raise serious questions about the US/UK extradition procedures, which seem to (contrary to the official claims) totally ignore the fact that similar sites have been found legal in the UK already.

When this case first came to light, I reached out to folks at both the Justice Department and Homeland Security to get comments, and both refused, pointing me only to press releases about domain seizures. Frankly, anyone involved in this case should be sickened and ashamed of themselves right now. This is not some criminal mastermind. This was a kid who built a simple website, which didn't host any infringing content, and is now being railroaded and destroyed by a system because a few folks in Hollywood say so. The fact that ICE now doesn't even try to hide the fact that it's doing this at the behest of a few entertainment industry giants, who don't want to adapt to the changing marketplace, just makes the whole thing even more disgusting.

This has nothing to do with protecting "rightsholders." Such rightsholders could go after those uploading content themselves if they wanted to. This seems to be a case where the existing administration is trying to destroy this family for no good reason at all, other than Hollywood told them to do it. Sickening.

One of the topics that we've discussed since the very beginning of Techdirt is the odd questions of jurisdiction raised by the internet. Pre-internet, most (though not all) jurisdiction questions where fairly straightforward: where was the alleged infraction/crime committed. Once you added the internet to the question, things got weird fast and no one seemed to really want to deal with it. Over the years, there have been some flareups here and there, but over the last couple of years, one thing has started to become clear: the US government feels that it has jurisdiction over much of the internet, even as it decries any other country that suggests something similar.

As we noted recently, folks, like Erik Barnett at Homeland Security, have a rather expansive view over why the US has jurisdiction over any website using a .com or .net domain name. And, of course, it goes way beyond that as well, with the recent admissions from Microsoft that EU data protection rules are effectively meaningless when faced with a US PATRIOT Act request for data. Basically, the US appears to claim that even if the data is stored in Europe, with strict data protection rules, if it's a US company, the US believes it has jurisdiction and can demand access to it.

Not surprisingly, this is upsetting EU officials, who realize that their data protection rules may be effectively meaningless if the US continues to take this rather expansive view of its own jurisdiction.

While you can understand why US officials and law enforcement want to view the world this way, what stuns me is that they appear to be both totally tone deaf to how this makes the US look abroad, as well as oblivious to the obvious unintended consequences and likely counter moves to such a view. Not only does it give moral cover to other countries doing the same thing -- potentially harming US interests significantly -- it's also going to lead to inevitable backlash and widespread harm to US companies and internet users, as users in foreign countries won't go near their services.

This is what happens when you have people who can't think more than single step ahead and put them in a position of power.

It's no secret that patent holders suing for infringement prefer certain venues. And, many tech companies based in the Bay Area like to try to get those cases moved to a local court instead. There's been some efforts to move cases to better locations, but thanks to some tricky games, lawyers can frequently keep the cases where they were filed.

Apparently Twitter thought that it might try some tricky lawyers' games of its own to get one case transferred. The company tried arguing that because the patent holder, Dinesh Agarwal, who was suing them was also a Twitter user, it meant he'd agreed to Twitter's terms of service... which state that all lawsuits against the company must be brought in San Francisco. That's pretty clearly a tortured reading of the Terms of Service, because this lawsuit had nothing, whatsoever, to do with Agarwal's use of the service... and the judge didn't buy it, allowing the case to continue in Virginia, where it was filed. As the judge noted, agreeing to this "would potentially foster satellite litigation in every patent case involving a social networking market participant," basically guaranteeing that such lawsuits could only be brought where social networking companies wanted them to be brought.

We already mentioned the attempt by the US to extradite Richard O'Dwyer, a UK student who ran TVShack.net and TVShack.cc, both of which were seized by ICE. Unfortunately, most of the press reports out of the UK lacked details, and I wasn't even entirely sure that an actual attempt at extradition had been made, or if there was just fear on the part of the O'Dwyer family. After some digging, however, it appears that this is absolutely the case. The Justice Department, out of the Southern District of NY -- the same DOJ offices that have been involved in the ICE seizures -- and ICE, via the US embassy in London, made the request to extradite O'Dwyer. I've now heard that from three separate sources. I also called the folks in the press office at the US Attorneys' office in SDNY to see if they were willing to respond to questions about the attempted extradition, and the answer is they don't want to talk about it at all. I believe the two quotes were "there is nothing in the public record we can comment on" and "there is no additional guidance we can give you," though they did offer to send me the press release they sent out when they helped seize the TVShack domains. Helpful.

Now, let's be entirely clear here. Dwyer has not violated UK law. Pretty much everyone agrees on this. In our initial post, we discussed a few similar cases in the UK that showed such site administrators were not liable. UK legal experts have been saying that what O'Dwyer did is legal in the UK as it matches up almost entirely with previous cases where people doing nearly identical things were found to have not violated the law.

So this is a massive jurisdictional and sovereign disaster waiting to happen. Basically, the US appears to be claiming that if you do anything on the internet, you're subject to US laws. That's crazy and is going to come back to haunt US law enforcement. Do they not realize that this is the same thing that other countries have tried to do to US citizens? The US even passed a law, the SPEECH Act, to make it clear that US citizens were not subject to the liability of other national laws, just because such things happen on the internet. To then turn around and pretend the opposite is true for everyone else is just massive hypocrisy.

Separate from all that, it's highly questionable if O'Dwyer is even violating US criminal copyright law, because there is no such thing as contributory criminal infringement (there is for civil copyright law, but it's nowhere to be found in criminal law).

Effectively, it appears that the US government wants to seize someone and drag them across the ocean to face federal charges for doing something that was (a) perfectly legal in his home country and (b) probably legal in the US. Do they not see how that might create some issues?

Honestly, this seems like the latest in a long series of massive screwups by ICE and the DOJ in the Southern District of NY, who appear to have rushed into the whole "copyright enforcement online" arena without bothering to understand the technical, legal and political issues involved. What they've done here is create an international incident, for which there will undoubtedly be ramifications. I've heard that while O'Dwyer is fighting the extradition, many suggest that it's effectively a done deal, that the UK government has agreed to the extradition without any scrutiny of the actual charges. I'm embarrassed that my country would make such a request in the first place, and shocked that the UK would merrily go along with it, sans scrutiny. It's gone beyond exporting our IP laws through treaties and diplomatic pressure to the absolutely ridiculous stance that the US government can (1) make up their version of copyright law and then (2) automatically apply those made up laws around the globe.

Paul Alan Levy points us to a good ruling in the Southern District of NY district court concerning yet another mass infringement lawsuit filing (pdf and also embedded below), this time by Digiprotect. The ruling touches on a few different issues, and actually may be quite useful, in light of some other recent rulings. Also, if you recognize the name Digiprotect, that may be because it was heavily involved in many of these kinds of mass infringement lawsuits in Europe, helping, in some ways, to pioneer the strategy of suing a ton of people in the hopes that many will settle. I hadn't realized it had set up shop in the US as well, but apparently it has. In this case, it appears to have taken on a Righthaven-like strategy, rather than a US Copyright Group strategy. That is, it actually "purchased" the copyrights, in some form or another, in order to sue, rather than just acting as the lawyers for a copyright holder. In this case, the actual content was produced by a California porn studio, Patrick Collins, Inc., better known as Elegant Angel Productions.

Digiprotect sued 266 individuals based on IP addresses, and asked the court for expedited discovery to find out who those people were. As has happened in similar lawsuits, Comcast and Time Warner protested, and after some wavering, the court asked Comcast and Time Warner to identify how many of the IP addresses listed from their subscribers, were actually in New York. In the end, Comcast said none of its subscribers on the list were in New York, and Time Warner said only 10 were. Digiprotect itself then admitted that on the entire list there were only 20 to 25 in NY. The court then told Digiprotect that it would only allow discovery for the IP addresses for NY subscribers, and suggested that Digiprotect file an amended complaint that only listed those IP addresses.

Digiprotect, apparently seeking to piss off the judge, instead filed an amended complaint still listing all 266 defendants. Bad idea.

The court makes it clear that those outside of its jurisdiction should not be included in this filing, and that it completely understands the business model aspect of what Digiprotect is trying to do:

During that conference the court noted its concern about ensnaring unsophisticated individuals from around the country in a lawsuit based in New York. The court was concerned then, and remains concerned, that defendants over whom the court has no personal jurisdiction will simply settle with plaintiff rather undertake the time and expense required to assert their rights.

That's an important point that we would hope other judges would note as well. Compare this to Judge Beryl Howell's ridiculous claim that lumping all these different defendants into a single lawsuit filed far away benefits defendants.

Separately, the court touches on another recent ruling we discussed, involving jurisdiction for copyright infringement under New York's "long arm" statute. As you may recall in that lawsuit (Penguin Group vs. American Buddha), the court basically said, "if it's on the internet, and the company is based in NY, it's okay to file in NY." We found that troubling, and apparently Digiprotect pointed to that case, since its US operations are based in NY... but the judge isn't buying it, and highlights some important limitations to the Penguin/American Buddha ruling. First, it notes that it's not even clear if that ruling applies to Digiprotect, because the real company "harmed" by the infringement is not Digiprotect, but Patrick Collins, which is based in California, not NY. It notes that Digiprotect really only received a "very narrow license," (which makes me wonder if it could be facing the same problems Righthaven is now facing for "buying lawsuits" instead of "buying copyrights").

More importantly, however, the court notes that even with the Penguin/American Buddha ruling, the company would still need to show that the defendants had "minimum contacts" in the state and that the lawsuit "comports with traditional notions of fair play and substantial justice, as required by the Federal Due Process clause." The court doesn't find that to be the case with Digiprotect:

Digiprotect has made no showing that any of the Doe defendants expected or reasonably should have expected their downloading of this film to have consequences in New York, particularly when the producer of the film is located in California. Furthermore, Digiprotect surely has no basis from which to allege that the unknown defendants derived substantial revenue from interstate or international commerce.

From there, the court limited the subpoenas only to the small number likely to be located in New York. Nice to see another judge recognizing how these lawsuits are more about a business model than about actual justice.

We've written a couple times about the absolutely ridiculous lawsuit that publishing giant Reed Elsevier filed against the punk band The Vandals. At issue was the fact that, years ago, the band put out an album, in which its logo was designed to parody the logo of Daily Variety, the Hollywood trade rag published by Reed Elsevier.

Way back when the album was first coming out, Variety had sent a cease and desist letter, and rather than fighting it (with a very strong fair use/parody claim) The Vandals caved and agreed not to use the image. However, the image can still be found online -- but not on sites controlled by the band. So Reed Elsevier and Variety are suing the band for somehow not magically stopping these other sites from using the image.

I had thought that once the ridiculousness of this became public, Reed Elsevier would quickly back down, but instead it dug in. Even more ridiculous is that it sued in Delaware, knowing that this would make life more difficult for the band, which is based in LA. Making things even more interesting is that the band's bassist, Joe Escalante, is also a former entertainment industry lawyer, though not a litigator. But, not one to back down from a fight, he decided to represent the band, went about learning the basics of litigation, and even got himself admitted to practice in Delaware.

Escalante emailed us to let us know that all of this has paid off so far, as the band has won the first round of the legal fight, and got the suit tossed out in Delaware and sent to California where it should have been filed in the first place. The short and sweet court order makes it clear that the judge finds it distasteful that Reed appears to have purposely filed the lawsuit across the country from the band to make life difficult for the band. You can see the full order below, but the key point is in the footnote, where the court notes that it certainly could have jurisdiction on the case, but given the circumstances, it feels that it is not appropriate, clearly suggesting that it recognizes the use of the court in Delaware was mainly to inconvenience the band:

The court recognizes that it could, if it were so inclined, choose to exercise jurisdiction over this matter and permit this case to proceed here in Delaware, given that a settlement agreement between the parties contains a clause that names Delaware as the forum for litigating disputes arising from the agreement. That settlement does not bind this court, however, and given the facts and circumstances surrounding this case, the court has decided in its discretion to decline to exercise jurisdiction. First, all relevant conduct and activities appear to have taken place in California, where the defendants reside and operate. Similarly, it appears that the Central District of California would be a far more convenient forum for trial, since the court's reading of the complaint and other documents in the record is that the vast majority of documents and witnesses pertaining to this case are in California. Furthermore, the consent judgment that underlies the plaintiffs' complaint was entered by the United States District Court for the Central District of California, and states that that court retains jurisdiction for the purposes of enforcing the consent judgment and related permanent injunction. It would be far better for that court to determine whether the conduct in question falls within the scope of the consent judgment and permanent injunction. Finally, given the defendants' apparently limited financial resources and the significant costs associated with litigating in Delaware, the court finds that the defendants would be unfairly prejudiced if they were forced to litigate in this district.

In response to this ruling the band has been mocking Variety and its lawyers relentlessly. The link above goes to a pretty incendiary blog post which, frankly, might also open the band up to defamation charges, but that would really only be digging Reed Elsevier deeper into a truly pointless legal battle. Separately, the band has used our favorite movie creation tool, Xtranormal to create this rather hilarious (and probably NSFW) video of a "fictitious meeting" between Variety's outside lawyer on this case and Variety's editor. It made me laugh: