The Borderless Internet And Jurisdictional Disputes: A Growing Problem

from the different-laws,-different-places dept

For many, many, many years, we've discussed how the fact that the internet easily reaches anywhere, despite different laws in different places, makes for some really screwed up legal situations, and little has been done to address this over the years. We recently wrote about a troubling decision in Belgium, whereby a Belgian court seemed to think that Yahoo -- despite no presence in Belgium -- needed to comply with Belgian laws. And, we're seeing similar situations again and again and again. Two new examples...

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 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.

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.

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.

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Belgium Fines Yahoo For Protecting User Privacy On Its US Servers

from the this-is-bad... dept

For many years, we've discussed the many challenges faced by countries in trying to recognize that "jurisdiction" on the internet isn't what they probably think it is. Many countries want to interpret internet jurisdiction as "if it's accessible here via the internet, it's covered by our laws." But it doesn't take much scenario planning to recognizing what a disaster would result from such an interpretation. Effectively that means that the most restrictive legislation anywhere in the world (think: China, Iran, Saudi Arabia, etc.) would apply everywhere else.

That's why it's quite worrisome to find out that Belgium is trying to fine Yahoo for protecting its users' privacy and refusing to hand over user data to Belgian officials. Yahoo noted, accurately, that it does not have any operation in Belgium, and the data in question was held on US servers, not subject to Belgian law. On top of that, the US and Belgium have a good diplomatic relationship, such that such a data request could have gone through established diplomatic channels to make sure that US laws were properly obeyed as well. But, instead, Belgian officials just demanded the info from Yahoo's US headquarters directly, and then took the company to criminal court where the judge issued the fine. The Center for Democracy & Technology highlights the problems of not pushing back against this ruling:

The implications of this ruling are profound and far-reaching. Following the court's logic would subject user data associated with any service generally available online to the jurisdiction of all countries. It would also subject all companies that offer services generally available on the global Internet to the laws of all jurisdictions, potentially exposing individual employees to a variety of criminal sanctions.

The U.S. government should be paying close attention here: To understand how problematic this ruling is, we need only imagine how the governments of China, Iran, Vietnam or other repressive regime of your choice may decide that the precedent set here is one well worth following. Such actions undermine Belgium's moral authority since, after all, it would only be hypocritical for Western democracies to criticize such radically overbroad assertions of jurisdiction by other nations.

CDT suggests the US government should get involved and protest the Belgian court ruling:

In the present case, Yahoo! has done right by its users. The company asked law enforcement officials to follow established diplomatic and legal processes in order to gain access to user information. It also enlisted the support of its home government to facilitate the process. In return, Belgian authorities have flouted an existing MLAT agreement, slapped Yahoo! with a fine, and set a dangerous precedent that potentially imperils the privacy of all Internet users and invites abuse by bad actors.

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eBay Has To Turn Over Info On Canadian PowerSellers

from the can't-get-off-that-easy dept

Michael Geist points us to the news that a Canadian court has told eBay Canada that it needs to cough up info on Canadian PowerSellers. The case involves attempts by the Canadian government to determine if eBay PowerSellers are underreporting earnings on their taxes. Canadian tax officials had asked eBay Canada to hand over data on various Canadian PowerSellers, but the company refused, noting that the info was actually held by eBay in the US, and thus the data was not subject to the Canada Revenue Agency's jurisdiction. The court disagreed, noting that eBay Canada had easy access to the data at a "click of the mouse." For the most part, this does make sense, though it does raise some questions about jurisdictions. Perhaps this is a special case, due to the close relationship between eBay and eBay Canada, but it still is a bit worrisome that a Canadian court would rule that info on an American server is subject to Canadian laws. You could see that coming back up in a bad way in the future.

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What Are 'Community Standards' When It Comes To Obscenity Online?

from the time-to-fix-the-definition dept

With a guy found guilty of distributing hardcore pornography online sentenced to 46 months in prison, plenty of people are beginning to question obscenity laws and how they apply to the internet. As you probably know, the standard for "obscenity" is a bit subjective -- as it's supposed to be based on local "community standards." That may have made sense when a local community was clearly definable, but it becomes a lot trickier when communities are a lot more complex. Not only does the internet challenge traditional concepts concerning legal jurisdiction, but it also changes how you define a "community." Choosing a local community based on geography makes very little sense when it comes to an online obscenity case, as there's probably not much of a chance that folks in that community were actually impacted by the content. Yet, in this case, prosecutors did some jurisdiction shopping, and found a conservative local community in which to file the case. That could lead to some very dangerous precedents, where "community standards" are based on the lowest common denominator, rather than the actual community involved.

What makes this tricky, also, is the fact that obscenity laws, like copyright laws are actually designed for a "broadcast media" world, where the worry is how a "publisher" produces some kind of content and pushes it out to a mass audience. Yet, the internet isn't designed as a broadcast media, but a communications one -- and suddenly the line gets a lot more blurry. Can you be thrown in jail for sending an obscene joke to a friend? Most people would think that's silly. But when the "audience" gets bigger, then the questions start to creep in, and the law is not equipped to handle it. If this content is only seen by those who seek it out, then is it really doing any actual "damage" to innocent people who are worried about being corrupted by obscenity? Either way, it looks like we may once again need to struggle with adapting laws to the very different nature of the internet.

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Michael Moore Admits He Doesn't Care About International Downloads, But He Has To Pretend To

from the download-away dept

We were a bit surprised recently when the news came out that lawyers representing Michael Moore were making the rounds concerning international downloads of his latest documentary, Slacker Uprising. Moore had decided to give the movie away free online, and given his past statements about having no problem with folks sharing a movie online, it seemed out of place to complain about any sharing that didn't just happen in the US and Canada.

Now it appears that Moore himself has taken the initiative to explain, and the answer is effectively that he doesn't care -- but he has to pretend to, because he only holds the rights for the US and Canada. In a note to the site TorrentFreak, he wrote:

"What do you think I'm up to? I know it may not be obvious to most, but I think you guys get it. I only own the US and Canadian rights. So my hands are tied. But this is the 21st century. What are 'geographical rights'?"

He then went on to point to the silliness of trying to prevent fans from sharing a movie:

"I'll say it for the hundredth time: If I buy a book and read it, and then give you the book to read, I have broken no laws. Why is that not true for all media?"

I'm not always a fan of his movies (though I do find them entertaining), but it's nice to see another moviemaker recognizing how counterproductive it is to try to stop file sharing, when embracing it has many more benefits.

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Michael Moore's Lawyers Think They Can Limit BitTorrent To Just US And Canada

from the the-internet-doesn't-have-borders dept

It's always amusing when people seem to think that geographic borders actually apply to the internet. We recently wrote about Michael Moore's plan to freely distribute his latest movie online, which supported Moore's earlier statements saying the greater the number of people who see his movies (for free or not), the better off he is. However, when the movie was finally released online, and users were told to share it, some were reasonably surprised that Moore said it should only be shared in the US and Canada. Of course, once people are distributing it online, national borders are somewhat meaningless. And it seems next to impossible to figure out a way to ask people to share the movie, distributing it via torrent sites... but say that it should only be shared within the US and Canada.

However, it appears that Michael Moore's lawyers are now trying to do the impossible. Michael Geist points us to a website that received a DMCA takedown notice for sharing the movie outside the US and Canada. In fact, the lawyers were confused, and the website they sent the takedown to was merely a DNS service, not the webhost, but it appears the lawyers will continue the rather ridiculous task of trying to take down any torrents of the movie outside the US or Canada.

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Indian Court Demands Google Hand Over Anonymous Blogger's Identity

from the anonymity-not-allowed dept

It would appear that Google is discovering some of the differences in the legal system in India as compared to the US. Just after we wrote about how Google (along with Microsoft and Yahoo) were sued over ads, there are some stories coming out about how an Indian court has ordered Google to hand over the identity of an anonymous blogger who was criticizing an Indian company, Gremach Infrastructure Equipments & Projects Ltd. While anonymous speech is somewhat protected (within certain limits) in the US, that's not the case in many other countries. As the link above notes, this may force Google to change the way it does business in India.

In some ways, this is just another example of a problem that many folks have been asking about for years. On a borderless web, how do you know whose jurisdiction covers what? If the blogging all occurred on US servers hosted by a US company, should they be covered by US laws... or Indian laws? Or, even, some other country entirely? If you agree that once it's on the internet, it can be covered by laws in other countries, you end up with a bad result: the worst, strictest laws suddenly become the laws everywhere. That's a ridiculous outcome, but it's exactly where things go when you start suing an American company concerning content hosted in America under laws from another country.

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The Other Side Of The Jurisdiction Issue: UK Politician Upset That US-Based Blogs Follow US Laws

from the the-internet-is-its-own-jurisdiction dept

We were just talking about why the US had jurisdiction on a UK travel agent's websites, and here's a story that flips the situation around somewhat. It appears that a UK politician with a blog got upset that people were posting potentially defamatory comments on his and others' blogs hosted by Google. He demanded that Google take them down, to which Google responded, correctly, that under section 230 of the CDA, they are merely the service provider and will not remove the contents of blog posts. The politician proceeds to then go on a rant about how it is unfair that suddenly British libel law no longer applies, and for that reason, he has shut down his own blog.

He's wrong on a large number of factual points in this claim, all of which should be pointed out. First, it's not clear why he shut down his own blog over this. If the comments were on other blogs, why would that make a difference? Second, he seems to have confused the issues of whether or not British libel law applies with the question of who is responsible. The problem is that he did not sue for defamation. Instead, he merely demanded that Google remove content without any proof that the content was actually defamatory. Thus, Google is absolutely right to refuse. Google is merely the service provider here. Instead, if he had sued in a British court for defamation, then a subpoena could have been issued for the identity of the anonymous posters (assuming that defamation was actually established, and here the UK is much more willing to unmask anonymous speech) and the court could require the person who actually was responsible for the defamation to remove the content. Instead, this guy blames Google rather than the people responsible, and complains about jurisdictional problems without taking the necessary steps to require action.

Furthermore, if the world worked the way this politician preferred, then suddenly we'd automatically have the lowest common denominator of all laws when it came to internet content. Suddenly countries with very strict laws about online content -- such as China or Iran -- could start claiming that any content anywhere else in the world broke those laws, and had to be pulled offline. This guy doesn't seem to think that far ahead, and merely thinks that because he doesn't like US libel laws, a US company should ignore them in his favor. But how will he feel when someone in Iran doesn't like UK libel laws and demands that his website be taken down based on Iranian content laws? Then will he start complaining that they have no right to trump UK laws?

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Why Did The US Gov't Take Down A British Travel Agent's Websites?

from the jurisdictional-questions dept

Over the years, we've seen a ton of jurisdictional questions raised by the internet. After all, since the internet is available just about anywhere, and content on it may break laws in some countries, but not others, how do you handle the jurisdiction question. Some courts have determined that it doesn't matter -- and they'll claim jurisdiction for whatever they want. Others suggest that evidence needs to be shown that the content is directed at and was seen by many people within the jurisdiction. Others have held that it needs to be created by a local resident or hosted on a local server. However, with all that said, it's not clear what jurisdiction the US government seems to be claiming over a bunch of websites created by a British travel agent. The websites all advertise trips to or information about Cuba. The websites were designed for European travelers to plan trips to the island nation. Now, it's well known that US citizens are not allowed to travel to Cuba, but that's not true of people from other countries. So, this guy clearly was not breaking any laws.

No matter, though. Since he had registered the domains for his various websites through eNom, an American company, the US Treasury Department had them pull down his sites and to refuse to release them to another registrar. There's no doubt that if the sites were targeting Americans or was run by an American travel agency, you could understand these actions. But to take down a UK-based website that was aimed at European travelers, offering them perfectly legitimate trips to Cuba, seems to go beyond any reasonable jurisdictional claim.

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Court Says DMCA Takedown Recipients Can Fight Back On Their Home Turf

from the watch-out-for-unintended-consequences dept

Someone who prefers to remain anonymous notes that a recent decision in the 10th Circuit holds that "when a company uses the DMCA to take down stuff from eBay on grounds of copyright infringemen, the company can be sued in the state where the target resides." Specifically, the copyright holder for artist Erte sent a DMCA takedown notice for someone selling products on eBay using a variation of an Erte design. The copyright holder also sent a letter threatening a lawsuit. The eBay seller responded by suing in the local, Colorado, courts, asking for a declaratory judgment that the products did not infringe, claiming fair use. The case here isn't about whether or not there was infringement, but what's the right location for the lawsuit. The copyright holders were based in Connecticut and the UK, and claimed that Colorado wasn't the right jurisdiction for the lawsuit. However, the Circuit court found otherwise, noting that it was clear that the sellers were in Colorado (it said so on their auctions) and the takedown notice clearly impacted people in Colorado.

The post on the topic concludes: "The outcome is a harsh lesson for copyright holders who send cease and desist letters willy-nilly." That basically suggests that perhaps those who rush out to send DMCA notices won't be so eager to dash them off, knowing they may be sued at the location of the recipient. However, I'd suggest that a different result is likely -- and it isn't a good thing. Rather than just sending off nasty letters threatening to sue, expect DMCA takedown notices to be followed quickly by actual lawsuits. We're already seeing this in the patent world. Patent holders who are afraid that someone they want to sue will sue for declaratory judgment in a more friendly jurisdiction simply decide to sue first in a favorable location (East Texas), without providing much warning at all. So, the end result of this might not be those issuing DMCA takedowns become more careful, but that they start filing more lawsuits.

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Canadian Supreme Court Tosses Out Politician's Libel Lawsuit Against Yahoo

from the a-small-victory-for-the-wrong-reasons dept

Earlier this year, we pointed out that a member of the Green Party up in Canada was apparently suing a ton of websites just for allowing comments about him that he did not like or find to be true. There were some really bizarre aspects to the case -- which seemed to highlight those of us in the US should be happy about section 230 of the CDA protecting service providers from the actions of their users. Canada doesn't have similar protections, and this guy sued Yahoo, Wikipedia, MySpace and many others, not because of anything those sites did, but because he didn't like messages posted by users of those sites. In fact, the guy seemed rather quick on the lawsuit trigger, leading many to accuse him of doing this to hide criticism, rather than to fend off actually libelous statements.

While many of those cases are still in process, Michael Geist (who is apparently also being sued by this guy) lets us know that the British Columbia Supreme Court dismissed (with costs) the libel lawsuit the guy had filed against Yahoo, noting that it was not at all clear that it had jurisdiction over the case, since Yahoo was in the US and the guy had presented no evidence that the supposedly defamatory postings were "accessed, downloaded, and read by someone in British Columbia." Of course, there appear to be plenty of other reasons why this case should have been thrown out, but the court didn't even bother to get into them in dismissing the case for no evidence that it was the proper jurisdiction. There are still plenty of other such cases to go through, though -- so I'm sure we'll be hearing more.

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