DMCA on jurisdiction shopping

hal@finney.org hal@finney.org
Mon, 26 Feb 2001 10:28:03 -0800


I was looking again at the text of the DMCA on the EFF web site [1] and
I noticed that it had something to say about "jurisdiction shopping,"
the idea that controversial material could be made available worldwide
from jurisdictions where it is not forbidden.

Section 512(a) immunizes service providers from liability who are just
passing the data through in an automated way.  It is clearly meant
to apply to the owners of the infrastructure through which Internet
data passes, and possibly to the ISPs at one or both ends as well.
However there is a caveat, which is that injunctive relief as provided
in subsection (j) is still applicable.  I.e., the court can still
order the following:

          `(B) If the service provider qualifies for the limitation on
          remedies described in subsection (a), the court may only grant
          injunctive relief in one or both of the following forms:

               `(i) An order restraining the service provider from
               providing access to a subscriber or account holder of
               the service provider's system or network who is using the
               provider's service to engage in infringing activity and
               is identified in the order, by terminating the accounts
               of the subscriber or account holder that are specified
               in the order.

               `(ii) An order restraining the service provider from
               providing access, by taking reasonable steps specified
               in the order to block access, to a specific, identified,
               online location outside the United States.

This latter provision applies specifically to the case where infringing
data is being made available from outside the United States.  The DMCA
authorizes courts to issue injunctions forbidding Internet service
providers from allowing access to specified online locations outside
the U.S.  These would presumably be those sites which are providing
infringing material.

This will severely impair the usefulness of jurisdiction shopping for
users in the United States.  Any offshore sites which become known as
locations where infringing material is available can be blocked.  The
DMCA goes on to offer the following guidelines for the issuance of
such injunctions:

          `(2) CONSIDERATIONS- The court, in considering the relevant
          criteria for injunctive relief under applicable law, shall
          consider--

               `(A) whether such an injunction, either alone or in
               combination with other such injunctions issued against
               the same service provider under this subsection, would
               significantly burden either the provider or the operation
               of the provider's system or network;

               `(B) the magnitude of the harm likely to be suffered by the
               copyright owner in the digital network environment if steps
               are not taken to prevent or restrain the infringement;

               `(C) whether implementation of such an injunction would
               be technically feasible and effective, and would not
               interfere with access to noninfringing material at other
               online locations; and

               `(D) whether other less burdensome and comparably effective
               means of preventing or restraining access to the infringing
               material are available.

It might be possible to design a system which makes it difficult to
block access to a foreign site under these guidelines.  For example, if
data were very widely replicated overseas, and provided at servers which
also had non-infringing data, the court would find it harder to justify
the injunction.  Ultimately though it will come down to the judgement of
the court, and in many cases the judges will favor established corporate
interests over those of "hacker pirates."

Hal

[1] http://www.eff.org/ip/DMCA/hr2281_dmca_law_19981020_pl105-304.html