Copyright News
| Publication year | 2020 |
| Author | Jo Ardalan |
Jo Ardalan
One LLP
A judge in the Central District of California dismissed a copyright infringement claim for lack of subject matter jurisdiction after finding that downloading copyrighted material triggers the Section 106(1) reproduction right only at the location of the ultimate download.1 The decision is pending appeal and has attracted amici parties who have a heavily vested interest in ensuring that the laws of online copyright infringement continue to protect United States-based creators.2
Plaintiff Superama Corp., doing business as USA Sumo, organizes sports and events to promote Sumo wrestling, including, the US Sumo Open, in Long Beach.3 Sumo USA authored videos of the competition and posted them on its website and YouTube channel, but did not make them available for download.4 Defendant Tokyo Broadcasting System Television expressed interest in licensing competition footage for rebroadcast throughout Japan.5 Sumo USA provided it with a licensing fee quote for reproducing a highly limited portion of the competition.6 Tokyo Broadcasting never responded.7 Instead, it allegedly "downloaded the entire footage of '2018 US Sumo Open-Best Matches with Commentary,' without knowledge, consent or permission, from Youtube and then, edited it down and produced a 125-second 'segment' which it then rebroadcasted throughout [Japan]....'"8 Tokyo Broadcasting also allegedly altered the video by adding Japanese titles and text.9
Tokyo Broadcasting sought dismissal of the complaint, arguing that the court lacked subject matter jurisdiction because "the alleged[ly] infringing activity took place entirely in Japan."10 It claimed that "[t]he footage at issue was placed on a computer in Japan and broadcast through [Defendant's] network in Japan, to people in Japan"11 Sumo USA argued in opposition that "the first infringement 'occurs when the bad actor downloads material from the copyright holder's website.'" and that "'[t]he key factor [was] the location of the server,'" which in this case was in California.12 The Court found that merely downloading, material from U.S. servers to computers in Japan was "insufficient to allege domestic infringement of the reproduction right under 17 U.S.C. § 106(1)."13
If affirmed, the district court's ruling will prejudice copyright owners. The uploading or downloading server may be located in any number of jurisdictions. The cloud itself has created worldwide hosting and has disseminated the hosting of material owned by US entities. Some of the amicus curiae have pointed out that "[i]f a theft of a video from YouTube or from a [US-based copyright holder's] computer is not actionable here because the owner uses a cloud hosting service that stores the file in a server farm abroad, then US copyright law ceases to exist in the internet."14
They argued that "[t]he lower court's ruling essentially allows the lowest foreign common denominator to scrub all US content and because the ultimate computer that downloaded the material is abroad-whether it be in North Korea or Russia-the end user is then not subject to US copyright suits for injunctive relief. And it is often injunctive relief in such cases that is important...
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