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
Labels: certification to court of appeals, copyright infringement, copyright law, due process, ip, long arm statute, personal jurisdiction
Partner in Manhattan law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2015-2016). The New York Law Journal called it "an indispensable guide". Serve on the Board of Directors of the Federal Bar Association, served as Chair of the Circuit Vice Presidents, Vice President for the Second Circuit and General Counsel. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014). Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.