In the past we've talked about the horrors of libel tourism
-- mostly involving the UK. That's where a plaintiff living outside the UK sues a defendant also outside the UK for defamation... in the UK
. The reasoning is that the UK's defamation laws are especially draconian and harsh on defendants. There have been efforts to change that and the US government was supposedly so offended by this practice that it passed the SPEECH Act
a year and a half ago to make it clear that Americans wouldn't be subject to such libel tourism rulings.
But is the US now becoming a home to copyright tourism lawsuits just as bad as the UK's libel tourism efforts?
Eric Goldman points us to a bizarre default judgment ruling out of a district court in Northern California involving a bunch of Korean entertainment companies suing a guy who lives in Australia
. The Korean companies claim that the guy, Kenny Tran, infringed on their copyrights by distributing their works. As the court describes it:
Defendant uses his websites to disseminate to internet users content, in the form of both
music and accompanying artwork, that has been unlawfully copied.... To listen to or
download an infringing copy of a work, the user clicks on a link next to an image of the
copyrighted album cover.... The user is then directed to a third-party website where
the user may download the album that was uploaded onto the third-party website by Plaintiff.... Users are able to download unauthorized copies of the DFSB Plaintiffs' copyrighted
material without Plaintiffs’ permission.
If the allegations are true, then it appears that Tran has, in fact, violated DFSB's copyrights. But the big issue that doesn't make any sense at all: why is this in a US court?
Again, the plaintiffs are in South Korea. The defendant is in Australia. The music in question is Korean pop music. There's simply no reason that this is in a US court, and it seems like the court should have just tossed it out on jurisdiction issues. Instead, it goes forward and issues a default judgment against Tran, who, one would imagine, had no reason to travel from Australia to the US to deal with this.
So how does the court defend California as a reasonable jurisdiction? It seems to come down to the fact that Tran uses Facebook, Twitter and YouTube... and all three are California companies.
Moreover, it appears as though Defendant has specifically
used several California companies to further his scheme of perpetrating illegal downloads. Tran
uses California companies Facebook, Twitter, and YouTube to promote the websites he operates,
and to allow users access to the pirated copies of the copyrighted music and artwork. Additionally,
it appears as though Defendant uses a privacy service located in California to shield his identity.... In light of the nature of the websites run by Defendant, it appears that Defendant’s
activities are expressly aimed at California.
That seems like a very broad definition of targeting California, and it means that users of a ton of popular online services that can be used to break the law are now subject to California jurisdiction, no matter where they are in the world. That seems extremely
questionable, and open to widespread abuse.
Separately, the court again goes a little wacky in arguing that Tran knew
that his activities would "cause harm in California" because he's using California companies:
DFSB and the other plaintiffs, however, are not
residents of California. Nonetheless, Defendant likely knew that his activities would cause harm in
California. Tran relied on several California companies to further his scheme of providing
copyrighted music to a world-wide audience of users. Additionally, given the evidence provided
by Plaintiffs of the reach of Defendant’s activities, Tran likely knew that harm – in the form of
distribution and download of copyright protected material – would be suffered in the forum state.
I don't see how this makes any sense at all. If the "harm" was done to the copyright holders, what does it matter where Facebook, Twitter and YouTube are located. Tran wasn't targeting "harm" at any of those companies. The court also later claims that it's "not clear" if the plaintiffs could bring similar suits in South Korea or Australia. Why? Again, this simply makes no sense.
It seems like with a ruling like this, plenty of others could start dragging pretty much anyone who may infringe on their works to court in California. This seems ripe for serious "copyright tourism" cases. Separately, it raises questions about the claims from SOPA supporters that copyright holders can't go after "foreign" infringers. Apparently a district court in Northern California disagrees...