The Borderless Internet And Jurisdictional Disputes: A Growing Problem
from the different-laws,-different-places dept
First, we already wrote about how London's National Portrait Gallery was threatening someone in the US for copying photos of public domain paintings from the Gallery's website and putting them on Wikimedia's servers. The problem is that this is entirely legal in the US, and the guy was in the US, the computer he used was in the US, and Wikimedia's servers are in the US. But the threat of a lawsuit is in the UK. Luckily, the EFF has taken on the case and is trying to stress this point:
It's quite clear under U.S. law that Mr. Coetzee did nothing wrong -- as far as U.S. law is concerned, the photos are not copyrightable, the NPG website's "browsewrap" contract is unenforceable, there is no "database right," and using Zoomify on public domain images doesn't get you a DMCA claim. It's also clear that everything he's alleged to have done took place on his computer and Wikipedia's computers, none of which are in the UK.In a separate case involving people in the US and a lawsuit in the UK, Mike Arrington, who runs TechCrunch, was recently sued for libel in the UK. The standards for proving libel in the UK are significantly lower than in the US, and considering that TechCrunch is a US site, based in the US on US servers, Arrington (reasonably) felt that responding to the lawsuit itself made little practical sense. Even if he could have won the case (and from the details, the case seems patently ridiculous, more a case of sour grapes than anything else), it would have been way too costly to defend. So he refused to respond... leading to the inevitable summary judgment (which is what happens by default when the other side doesn't appear). This is a bad result for everyone, as it means Arrignton can no longer travel to the UK (and, in fact, canceled planned travel there), for no good reason at all, other than not wanting to spend an incredible sum of money to defend himself in a country he doesn't live in or operate in. It's hard to see what's reasonable or fair about that at all.
In the offline world, that would certainly be the end of the matter. If Mr. Coetzee had flown to London, purchased posters of the same paintings at the museum store, brought them home, and started making copies for his friends, it's clear he would be well within his rights in doing so.
Why should the answer be different simply because he posted the photos to Wikipedia? NPG seems to think that UK law should apply everywhere on the Internet. If that's right, then the same could be said for other, more restrictive copyright laws, as well (see, e.g., Mexico's copyright term of life of the author plus 100 years and France's copyright over fashion designs). That would leave the online world at the mercy of the worst that foreign copyright laws have to offer, an outcome no U.S. court has ever endorsed.
Issues like these have been going on for many, many years, and at some point this is going to need to be addressed. You can't have a situation where the lowest common denominator of laws applies across the board in every country. And you can't have a situation where people would have to bankrupt themselves to defend themselves in a foreign country. It still seems like the most reasonable solution is to default such lawsuits to the country where the action has actually taken place and/or where the servers reside. Now, some might say that you can place the servers elsewhere, but for such situations you could just default to where the person resides.