Wednesday, 21 October 2009

Where does publishing online take place

Today's find is the decision of the District Court for Delaware in Moberg v 33T (available from the Loeb & Loeb LLP website).

Everybody "knows", following Gutnick v Dow Jones in Australia, that information on the Web and other internet sites is published wherever someone reads it. It's therefore easy to fall into the trap of thinking that this reasoning applies to all fields of law, and not just defamation.

In Moberg the problem was that digital photographs had been made available via a German website, but copied by the defendants and placed on their own US websites. The photographer sued in Delaware, and was met by the defence that any work first published in the US (which could include simultaneous publication in the US and other jurisdictions) needs to be registered with the US Copyright Office.

To avoid the application of this rule, which would make a nonsense of the Berne Convention, the court held that publication occurred only at the place of the German website, and not in the US.

We now have two possible rules:

1. Publication via internet postings takes place everywhere; or

2. Publication only takes place where the website is located (wherever that is - the court did not need to decide this question, merely that publication had not occurred in the US at the moment of uploading/making available).

There may be others to come!

Perhaps the most useful lesson from this judgment is that a purposive, rather than merely technical, analysis is required for legal analysis. It is quite conceivable that future litigation might decide that an image on a German website, which was downloaded by a US resident, would be published in the US for the purpose of an infringement action against the German website (but not for the purpose of imposing the US Copyright Act's registration requirements).

"When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean - neither more nor less." Quite so.

1 comment:

  1. slightly connected. Following my quest on the question of 1- competent jurisdiction and 2- law applicable to online activities:
    10/12/09 - Compétence des tribunaux français pour les contrefaçons en anglais sur

    The French Cour Appeal stated that French Tribunal competent for conterfeit in English on e-Bay con the basis that the sale occured in France.

    « sans qu’il soit utile de rechercher s’il existe ou non un lien suffisant, substantiel ou significatif entre les faits allégués et le territoire français ».

    which I would translate by:

    Regardless the establishment of sufficient link, substantial or significant between the alleged facts and the French territory.

    In the pendant case of Google fighting in Italy, Google declares :
    "Giuliano Pisapia, a third Google lawyer who is due to address the court on Dec. 23, said Google's position was that Italian law did not apply to Google, the company that actually processed the video, but that Google had in any case satisfied all the requirements of Italian law. "Whether Italian law was applicable or not, there was no crime committed by Google," '
    'Google lawyers begin closing arguments in Italian trial'