Kazaa And Exportation of U.S. Copyright Laws

Mr. Vidster writes "Interesting article in the NYTimes about the potential issues the U.S. justice system must face when dealing with Sharman Networks and KaZaA. Apparently Sharman and KaZaA have servers in Denmark, source code in Estonia, and the developers live in the Netherlands. How far does the long arm of US copyright law reach?"

Comments

As far as it wants to.

[drhairston]

Jon Johansen can answer that question for you, and he is only a teengager.

Re:As far as it wants to.

[Jeppe Salvesen]

Being a Norwegian, I must say that I suspect the Johansen prosecution is all about appeasing the USA. We are allied with the USA, and the USA is an important trade partner as well as defence partner.

If we did not attempt to prosecute Jon Johansen, it would look like we did not care about the views of the USA. Rather, we will try him in a Court of Law using Norwegian Law. Most domestic IT law experts expects Johansen to win. It will be trying for the poor kid, but he will go loose and the USA will be moderately satisfied we at least tried.

That being said, I believe the WTO agreements are the papers to look for when researching the scope of Intellectual Property law.

Re:As far as it wants to.

[thomas.galvin]

What I also find hilarious about the copyright argument... The RIAA says music sales are down due to d/l's of mp3's and the various other formats of music; however, I guess our current state of the economy would have nothing to do with the decrease in sales? I wonder if they compared other times of poor economy with their sales trends if they would be comparable to the downside trend they have been noticing.

I wonder if they compared their situation to other times providers of non-esentiall goods were guilty of price fixing.

Re:As far as it wants to.

[Eppie]

Jursidiction is really not that complicated here. If you avail yourself of the benefits of doing business in America, then you are subject to the laws of America. Everybody likes to pretend these are novel issues, but American courts don't find them to be that difficult.

What follows is a repost of my two-secondprimer on personal jurisdiction on the internet:

American civil procedure provides for jurisdiction over foreign companies that do business in America. The theory is that if you come to America and avail yourself of our markets, resources, society, labor, and laws, you are bound to obey our laws. This does not mean that you can be sued in New York if you offer goods for sale in China and some American happens to buy them while on vacation in Beijing. It does mean, though, that if you knowingly advertise in America, ship goods to America, or provide services to American clients, you can be sued in America for violating American law.

On the Internet, this analysis is a little complicated because websites are accessed internationally, and it is difficult to detect what country people are really browsing from. Still, efforts can be made to exclude certain jurisdictions. For example, Lindows.com [lindows.com] used to have a message [google.com] on their website that refusing to do business in Washington state. This is because they were trying to avoid being dragged into court by MSFT in Washington state.

There is plenty of caselaw on this emerging area of law:

• A Blue Note jazz club in Missouri was sued by the Blue Note jazz club in New York. A NY court held that the Missouri club's website, though viewable from NY, did not create jurisdiction in NY because the club was a strictly local Missouri operation. (Bensuan Rest. Corp. v. King, 126 F.3d 25)
• Likewise, Cybersell of Arizona sued Cybersell of Florida for trademark infringement and was denied jurisdiction because Cybersell of Florida was not really offering its services to Arizonans. (Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414)
• OTOH, Zippo (the company that makes lighters) sued Zippo.com (a company that provided fast news updates) in Pennsylvania. Since Zippo offered its news service to netizens across the land, including PA, they were adjuged to be doing business in PA and thus were amenable to suit.

As the cases make clear, there is a sliding scale that stretches from (1) passive website relating to local activities to (2) interactive website offering services to anybody across the land. Elcomsoft sounds a lot more like Zippo than it does the Blue Note jazz club in Missouri. If they are offering their services to Americans and offering downloads to Americans, they have to expect that they might be sued by Americans in America.

Re:Damn,

[(trb001)]

Because of the nature of KaZaA, I believe that it's impossible to shut down foreign servers. I'm not overly familiar with how KaZaA works, but how do you shut down something that, in theory, can run on any computer, any port,without making calls to a centralized server, doesn't track transmitted files and can use encrypted communications? That final part invalidates ip-sniffing, and the random ports restricts your port blocking.

Finally, how do you prosecute someone if you don't know where they are? Eventually (as it sounds like is somewhat the case with KaZaA) someone will write a system like this and then not release their names. Internal version information is enough to keep track of releases and by the time something has been distributed enough to know it's a pest, it's been distributed enough to become a persistant problem.

--trb