Today, Public Knowledge signs onto an amicus brief with Google, the American Library Association, and several other like-minded organizations, in the slightly bizarre case of Explorologist Ltd. v. Brian Sapient. In that case, Uri Geller (most famous for his apparent ability to bend spoons) attempts to use foreign copyright law to silence U.S. critics. The crux of the issue is that Explorologist, which is Geller's company, claims to have a United Kingdom copyright on eight seconds of footage at the beginning of the 13-minute clip that Sapient uploaded to YouTube. Explorogist argues that by uploading that video from his United States home to a YouTube server in the U.S., because it was later downloaded by U.K. citizens, Sapient has infringed that U.K. copyright. Even apart from the instinctive “what?” triggered by the idea of attempting to enforce U.K. copyright law in a U.S. court for U.S. activities, there are some serious legal problems with this claim, which the brief addresses and which I'll summarize below.
This is actually the second case related to Uri Geller's attempts to quiet Sapient, who posted a portion of a NOVA episode which challenges the techniques used by Geller and others who claim paranormal powers. More details on both cases can be found at EFF's site, as EFF is handling them. It's worth noting that that the case also includes commercial disparagement and appropriation claims, which also suffer from serious weaknesses, but which are not dealt with in the amicus brief.
United Kingdom copyright law only applies to acts which occur in the U.K. The idea of territoriality – that a nation's copyright laws only apply within that nation – are built into copyright law generally, and are explicit in the U.K. copyright statute, which vests copyright owners with only “the exclusive right to do the following acts in the United Kingdom.” Sapient's activities with regard to the video occurred entirely within the U.S., and so are not subject to U.K. copyright law.
YouTube does not communicate the video to the British public merely by allowing British citizens to access their web site. Explorologist argues that by authorizing YouTube to “cause the Film . . . to be seen and heard in public within the United Kingdom,” Sapient is liable for YouTube's alleged infringement. As a preliminary matter, there is no such form of infringement in U.K. law; however, even if interpreted as “communicating the work to the public” (which is part of the U.K. exclusive rights), YouTube's servers made the videos available when they were posted – on a U.S. server. Since YouTube's actions were not in the U.K., they do not fall within U.K. copyright law, and authorizing such non-infringing actions can not create liability.
Copyright Infringement is not a transitory tort. Explorologist is attempting to enforce U.K. copyright in the U.S. through a “transitory tort” theory. The idea of a transitory tort is that while typically, one must be sued for an act in the place where that act took place, some acts are “transitory” and follow the person who committed them, allowing him or her to be sued in a foreign jurisdiction. Transitory torts are actions which don't have any real tie to the locality where they occurred. That's why personal injuries are often transitory, while property crimes are not. The theory presented is that because copyright is intangible property, it must be attached to the person who owns the copyright rather than the place of copyright. The problem is that, as discussed above, copyright is territorial, and so is tied to the locality despite being intangible. While the brief does not go into detail, Bill Patry (author of the brief) made an excellent blog post explaining why copyright infringement is not a transitory tort over a year and a half ago. Check it out for a more in-depth analysis.
Territoriality is Important.
From a policy perspective, it's extremely important to maintain the territorial boundaries inherent in copyright law. In the age of the Internet, anything done in one country is visible around the world. The net result of holding Sapient (and implicitly, YouTube) liable under U.K. law for posting videos on a U.S. server is that anything that gets posted on the Internet is subject to the copyright law of every country plugged into the net. And if purely domestic activities start being subject to the copyright laws of every country around the world, speech on the Internet will be catastrophically curtailed. Everyone who uses the Internet will be subject to the most restrictive laws in existence worldwide. And United States protections on free speech won't mean much when someone else's copyright law applies to your web site.