Copyright, Jurisdiction and You

Filed as Features on August 10, 2009 9:03 pm

In copyright law, the big news is always made by cases such as the Jammie Thomas verdict, the Tenenbaum trial or even The Pirate Bay trial in Sweden. As importance as these cases are, their legal applicability to the average person is dubious, especially since the RIAA has stopped suing file sharers.

For the cases that could have a direct impact on your life, you often have to dig deeper. This is true for the case of Brayton Purcell LLP v. Recordon & Recordon, a seemingly dull case about two law firms in a dispute over content posted on their respective Web sites.

However a recent decision by the 9th Circuit Court of Appeals in the case, if upheld by other circuits or the Supreme Court, could have a drastic impact on the way copyright issues are litigated in the United States.

How big is the difference? The dissenting judge on the panel said the following, “Under the majority’s opinion, every website operator faces the potential that he will be hailed into far-away courts based upon allegations of intellectual property infringement, if he happens to know where the alleged owner of the property rights resides.”

In short, if you are accused of copyright infringement, it is no longer safe to assume that you would be sued in your own district, but rather that you could be forced to litigate in the plaintiff’s court, enduring the extra costs and expense that comes with it.

Background

Brayton Purcell is a large law firm based near San Francisco. Recordon & Recordon is a two-person firm from San Jose. According to Brayton, Recordon plagiarized content from their site that pertained to its elder abuse practice. The district court agreed and ordered both Recordon and its Web design firm, Apptomix, to pay a combined $184,000 in damages and legal fees.

However, the case was unusual in that Brayton had sued Recordon in the Nothern District of California. Recordon, being in the southern part of the state, is in the Southern District. The district court had allowed the case to go forward, finding that the Northern District had jurisdiction but Recordon appealed to the 9th Circuit on jurisdictional grounds and, in a split decision, the Appeals Court found that Brayton had met its burden on the matter of jurisdiction.

According to the majority opinion, Recordon had “expressly aimed” their actions at the Northern District by choosing a site from that district to plagiarize. This means that, since the company was aware that they were using content from a company within that district, they had given that district jurisdiction over the matter, even though it is over eight hours away from the court and had no business in that district.

Implications

The issue was a fairly minor one in the case itself. If the 9th Circuit had tossed out the ruling on jurisdictional grounds, most likely Brayton would have simply filed in the Southern District with much the same results. It would have been more about delaying the ruling and negotiating a settlement than winning the case.

However, if the ruling stands over time, it could have a drastic impact in future copyright cases.

As Judge Stephen Reinhardt, it’s conceivable that, should this ruling stand up over time, that by infringing someone’s copyright and knowing where that person is located, you’ve done enough to give that person’s local district jurisdiction over the matter. It’s conceivable that you could see yourself defending a copyright dispute across the country, bearing the expense of doing so.

This would have the effect of making it much cheaper and easier to file a lawsuit for copyright infringement and make it much more difficult, or even impossible, to defend. It would almost certainly increase the number of lawsuits filed and make it much easier to obtain a settlement in those cases. While this could be a boon for smaller copyright holders, who often lack the resources to file cross-country lawsuits, it could also be a nightmare for alleged infringers, especially if it is abused.

At this time, this ruling only directly applies to the 9th Circuit. However, it and the 2nd Circuit, which overs New York state and some of the surrounding areas, are considered the major copyright circuits and make up the bulk of precedent on these matters.

Still, this does not mean that you can expect to be sued in random districts all over the country just yet. Since the issue is far from settled, and likely won’t be until either other circuits or the Supreme Court weigh in, most won’t risk having a suit tossed on jurisdictional grounds as it is usually cheaper and easier to file it correctly the first time. Even the 9th Circuit could reverse itself if a different panel of judges were to take up the issue.

In the meantime though, it is even more imperative to not infringe copyright or, if you do, at least not be aware of where the person you are infringing from is located.

Bottom Line

The punchline to this very sad joke is that, according to Recordon, the entire infringement was carried out by Apptomix. They were not aware of the infringement and only found out about the existence of Brayton after the dispute began.

Stephen Recordon, one of the partners at Recordon & Recordon, said, “Years of litigation, thousands and thousands of dollars, and all because you hire the wrong person.”

But while the case is definitely a big blow to Recordon, it could also be a major setback for countless others in the same position. Turning cases that would have been simple cease and desist letters or small settlements into expensive lawsuits in far-flung districts.

Right now that’s only a possibility, but the groundwork has definitely been laid.

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