NOTE FROM RAND: Our newest mozzer, Sarah Bird, comes with a pedigree in law and a passion for search and technology. Her addition to our team brings not only an in-house attorney (which has already proven invaluable during the funding and growth process) but a phenomenally vibrant and probing intellect to apply to areas where search intersects with the law. Please help me in welcoming SEOmoz's first "esquire." :)

---

May it Please the Mozzers,

I present myself to you as your legal resource for all things SEO/M related.

A graduate of the University of Washington School of Law, I have spent the last three years litigating complex and diverse legal issues. With much gratitude and enthusiasm, I recently accepted SEOmoz's invitation to bring my expertise to the SEO/M community.

Although I cannot give you legal advice, I can give you information about the law. My goal is to expand SEOmoz's scope and increase its utility by b(law)ging on legal issues and trends affecting the SEO/M industry. In time, I aim to provide sample contracts, cease and desist letters, DMCA takedown notices, and disclaimers for your use. I will also issue a weekly blog post featuring questions and answers on topics such as copyright and fair use, trademark, privacy, contracts, International IP treaties, net neutrality, and license agreements.

It bears repeating: This is not legal advice. Legal advice is when a lawyer applies the law to a specific set of facts. For legal advice, I urge you to contact qualified counsel. However, this blog post will help you avoid common pitfalls and determine when you need to seek out legal advice.

I offer you my legal mind. In exchange, please forward me your burning legal questions. Because law touches so many areas of SEO/M, I would appreciate your guidance on topics of interest and importance to the community. Feel free to comment here or email me directly. I look forward to working with you. Let's get started!

---

I’d like to start off my first Q&A post by answering a question posed by Will Critchlow from Distilled. He was working through the complicated intersection of U.S. copyright law and international law. More specifically, Will asked questions like:

• How does one know where a copyright infringement case is heard and what law is applied for violations involving parties from all over the world? Location of the server? Blogger? Copyright holder?
• Can a U.S. blogger employ the United States' legal definition of “fair use” if he or she is writing their posts to primarily UK-based viewers?
• Can a U.K. blogger employ U.S. definitions of “fair use” if she is posting primarily to Britain-based viewers?

[note: for those of you who don’t even know what copyright is or why it is important, I plan on tackling more basic issues either through a weekly Q&A post and possibly a Copyright Guide. Please don’t be discouraged from asking beginner legal questions.]

Mr. Critchlow has jumped right in to the deep end with this question. The short answer to his question [you're going to love this] is "it depends." [That'll be $500 bucks please.] 

Stay with me now. While this kind of post may make you feel like you're about to expire from ennui, remember that this could keep you out of jail some day. At the very least, memorizing a few of the key legal terms and principles below will make you sound tremendously impressive at your next SEO/M event.

There is no such thing as international copyright law.

First, there is no such thing as international copyright law. Oh no. That would make it too easy. Instead, there is a whole conglomeration of international treaties, unions, and conventions. If it weren't for these international treaties and conventions, there would be no way for copyright holders to enforce their rights in other countries.

Because of the rise of global commerce and the increasing importance of intellectual property, most nations of the world have entered into a series of treaties, unions and conventions. For the over-achievers, I am linking to a list of countries and the various copyright treaties/conventions they have entered into. For example, the U.S. has entered into the following treaties: the Berne Union, the Paris revision of the Berne treaty, NAFTA, the UCC, the Paris revision of the UCC, the WIPO Copyright Treaty, and the WIPO Performances and Phonograms Treaty, blah blah blah etc. etc. These treaties often have different levels of copyright protection and jurisdiction rules. This is part of the reason that the short answer to Mr. Critchlow's question is "it depends." I'm not just being coy.

I'm going to give you some general principles and trends to try and make international copyright not seem so complicated. Then I'm going to ruin your new-found confidence by throwing several wrenches into the mix. Sounds like fun, right?

Where will my international copyright case be heard?

Very generally speaking, a copyright infringement case with international components (what I'm calling an "international copyright case") will be brought where the infringement took place. Lawyers refer to this principle as the “territoriality” of copyright law. Of course, this begs the question, “How do you determine where the infringement took place when dealing with infringements on the internet?”

Courts around the world have grappled with this question, the same way philosophers have grappled with the mind/body problem. Is the infringement location determined by the location of the server? By the residence of the person authorizing the infringement? The residence of the copyright holder resides? Where the defendant resides? What about where the harm from the infringement occurred? After laboring over this issue, most courts in most of the world have given up trying to use a simple, one-factor test.  It’s just not that simple. Instead, judges are doing what judges love to do: considering all the factors and then going with their gut instincts. It’s similar to Justice Stewart’s famous definition of hard-core pornography: “I know it when I see it.”

Despite the difficulty of determining the location of infringement on the internet, there are certain things courts all over the world agree on. First, the mere fact that you can view a website with infringing content in Country A does not give Country A jurisdiction. Now, if you can purchase infringing content, such as a book or a song from that website in Country A, then that may be different story. Second, the mere fact that a host server is located in Country B, without more, does not give Country B jurisdiction. If the connection is that minimal, it is not enough to establish jurisdiction.

Because of the many factors to be considered, there may be more than one right answer in determining where your international copyright case should be heard. It is increasingly common in the global marketplace that two or more countries have jurisdiction to hear the dispute.

For example, assume that the copyright holder lives in the U.K., the infringer lives in the U.K., but the host server and the target market for the infringing website is in Russia. It is likely that the case could be brought in either Britain or Russia because both countries have substantial connections to the dispute.

Don’t you just love multiple choice questions where the answer can be all of the above?

What country’s law will the forum court apply?

This surprises a lot of non-law people, but courts sometimes apply the laws of other countries. They don’t like doing it, but they do it in certain situations.

Why would the court apply another country’s laws? Sometimes parties to a contract agree to a specific forum in advance.

For example, Able Corporation enters into a licensing contract with Brutus Corporation that includes a choice of law and forum. Both parties agree in the contract that any disputes shall be settled using U.K. law and be filed in Britain. Able resides in the U.K. (hence the choice of forum) and Brutus resides in Brazil. When Brutus exceeds the scope of the license agreement, Able can bring suit in the U.K. and U.K. law will be applied. If there were no contract in place, then Able may have to bring the suit in Brazil and be subject to Brazilian copyright law.

If there is no contract in place, and often there isn’t, then courts will usually apply the law of the forum country. More accurately, the court will apply the law of the country where the infringement took place. For reasons discussed above about jurisdiction, the country where the infringement took place is usually the forum country.

However, that’s not always the case. Lawyers everywhere continue to be in a tizzy about “extra-territorial” applications of copyright law.

For example, in the case of London Film Productions Ltd. v. Intercontinental Communications, Inc., 580 F.Supp. 47 (1984), the plaintiff corporation was a resident of Britain. The defendant was a resident of the United States. The infringements took place in Chile and other Latin American countries. Which court do you suppose heard the case? The United States federal court. The court determined that it had sufficient contacts with the facts giving rise to the dispute to justify hearing the case, even though the infringements took place in other countries. Thus, the U.S. federal court judge was put in the position of having to apply several other Latin American countries’ laws. While courts don’t generally enjoy doing this, the alternative, reasoned the U.S. federal court, was to require the plaintiff to bring the case in several different Latin American countries. This would be a colossal waste of resources. Thus, after considering all the factors, the U.S. federal court determined it had jurisdiction to hear the case and that it would apply the laws of foreign countries where appropriate to determine whether infringements in fact took place.

London Film Productions is an example of a court having jurisdiction, but applying another country’s law. Location of the infringement is the one of the strongest factors in determining which country's law to apply.

The cautionary tale of Hew Griffiths is another example of an international copyright case that was not decided in the same country where the infringement took place. But this case goes even further than London Film Productions by not even applying the law of the country where the infringement took place. An Australian citizen who never set foot in the U.S., Griffiths was extradited from Australia to the U.S. for making available to Australians pirated software that was copyrighted in the United States. Based on the trends and rules discussed above, Australian courts would have had jurisdiction and applied Australian law in this situation. That was certainly an option. Instead, however, Griffiths was extradited to the U.S. and plead guilty to violating U.S. copyright laws.

What’s the point? The point is that although people will tell you that a case should be heard where the infringement took place and that country’s laws should be applied, that is not always the case as demonstrated by London Film Productions and the tale of Hew Griffiths.

But I heard that something called “the National Treatment Doctrine” determined the choice of law!

If you do your own research on copyright infringement and conflict of laws, you may read that something called the “national treatment policy” determines which law is going to be applied. This is a common oversimplification. Don’t fall for it.

The Berne Treaty, probably the preeminent international copyright treaty, requires that foreign copyright holders be treated the same as native copyright holders in that country’s court system. In other words, people from the U.S. can bring infringement cases in Germany and must be provided the same rights as a German citizen. This sounds as if the national treatment doctrine requires that German copyright law be applied to foreign citizens who bring cases in Germany. However, for reasons discussed above, the forum country sometimes applies a foreign nation’s laws. Depending on the facts of the case, “national treatment” could mean providing the same rights as a German citizen under German law, or the same rights as a German citizen under U.S. law.

The moral of the story is that location of the court and the “national treatment doctrine” don’t always determine the choice of law.

What if suit is brought in two different countries arising out of the same set of facts and courts in different countries claim jurisdiction over the case?

If, after reading all of the above, you are thoroughly confused, you are not alone. Attorneys and judges regularly confuse these issues. Jurisdiction and choice of law issues require consideration of many different factors and reasonable minds often look at the same factors and come to different conclusion. In the end, it is entirely possible that two different courts, located in different countries, both have good reasons for hearing a case. This is when it is important to hire very top notch legal representatives to out-lawyer your adversary.

For example, assume that you’re a U.S. resident and you have written something brilliant and wonderful and that you own the copyright. Let’s also assume that Brutus Corporation, domiciled also in the U.S., has made a parody of your work....in French. Brutus is using a server located in France to reach millions of French viewers with the parody. Your lawyers will tell you to go bring your claim in France because there is a good argument that is “where the infringement took place” AND French law is more favorable to your case than U.S. law. This is because the French have stronger “moral rights” to protect copyright and they have a much narrower definition of “fair use,” a likely defense to your claim.

After you file your claim in France, Brutus Corporation is going to hire crackerjack attorneys to convince the French court that the U.S. is really the best place to hear the case because that is where both of the parties reside. Brutus Corporation has a great incentive to argue against France having jurisdiction; if they get the case before a U.S. federal court, they may be able to convince that judge to apply U.S. law. The United States Copyright Act has a very liberal definition of “fair use” that includes the right to parody copyrighted material. Thus, the defendant has a greater chance of winning if it can get the case moved. The plaintiff wants to keep it in France and the defendant would rather it be heard in the United States. A factual situation like this could really go either way because both courts have significant contacts with the parties to the suit and therefore could exercise jurisdiction.

Now you are just as confused as all the lawyers and judges around the world.

Alright mozzers. It is my hope that after you read this you will appreciate why lawyers and b(law)gers appear to be obfuscating whenever they respond "it depends" to your international copyright issues. There is not one right answer to questions of jurisdiction and conflicts of law. The law continues to sputter along after developments in technology. 

From now on, you are more informed than most people about international copyright issues. And you are probably still confused. But hopefully you know why you are confused and that it's not your fault. All the lawyers and judges around the world are still struggling with these issues.

As this area of law continues to develop, I will keep you updated.

On a final note, be sure to consult a qualified legal attorney if you're struggling with a copyright issue. My post is not a replacement for specifically-tailored legal advice.

Thanks for your attention to this post.

Best Regards,

Sarah

p.s. Don't forget! Not only do I invite questions and comments about this particular post, but any legal questions at all for the (hopefully) weekly series of blog posts on legal issues in the search world.