Thursday, June 17, 2010

2d Cir: The Long Arm of New York Copyright Holders: Can New York Copyright Lawyers Sue America Without Leaving Manhattan?


Manhattan is a great place to be a copyright lawyer.  Since it is the publishing and advertising capital of the world, there is usually someone here in the infringement food chain.   With a subway ride, we are in court.  But how far will New York law, its long-arm statute, permit New York lawyers to pursue infringers who are not located in New York?

In Penguin Group v. American Buddha, 09-1739-cv (June 15, 2010), Judge Sack wrote an opinion for the Second Circuit certifying the following question to the New York Court of Appeals:

In copyright infringement cases, is the situs of injury for purposes of determining long-arm jurisdiction under N.Y. C.P.L.R. § 302(a)(3)(ii) the location of the infringing action or the residence or location of the principal place of business of the copyright holder?

The question is a major one.   American Buddha put copyrighted Penguin works online, claiming fair use.  People downloaded them outside of New York State.  Is the economic injury felt by the New York copyright holder enough to support long arm personal jurisdiction in New York State?

This is a debate of extraordinary importance for New York.  The District Court dismissed the case for lack of jurisdiction.

Where state law is unclear, a federal appeals court may certify the question to the New York Court of Appeals seeking an answer to the question.  If the NY Court of Appeals says that New York's long arm statute provides no jurisdiction, the District Court's opinion will be affirmed.  If the NY Court of Appeals finds jurisdiction, the Second Circuit has indicated that it will remand back to the District Court for further proceedings.

In the coming year, expect a debate to rage in the copyright community, these are big questions that could reshape our entire legal system and our notions of due process in a digital world.

Purchase Copyright Litigation Handbook from West here  

1 comment:

Andrew Berger said...

Ray Good post; I agree this case is important. Personal jurisdiction has traditionally rested on presence within a particular state. But where is a web site present that may be accessed globally? Is a Internet retailer selling to consumers in 50 states transacting business in any one state? I have just posted a long (maybe too long) analysis of the case at I also attached Penguin's fine briefs, which make interesting reading.Thanks.