Published by LawTechie - July 18, 2011 - LawTechie

Internet Business LawyersThe Second Circuit has ruled that copyright infringement via internet is sufficient to claim NY as the situs-of-injury in a long-arm jurisdiction analysis regardless of where defendant is domiciled and also regardless of whether or not any proof of NY-based downloading is shown. Penguin Group (USA) Inc., v. American Buddha, — F.3d –, 09-cv-1739 (2d Cir., May 12, 2011). This means that a NY plaintiff can potentially hale any alleged internet infringer into NY court regardless of where said infringer lives.

The Court stated:

“[in] copyright infringement cases involving the uploading of a copyrighted printed literary work onto the Internet, … the situs of injury for purposes of determining long-arm jurisdiction under [the relevant section of New York’s long-arm-jurisdiction statute is] … the location of the copyright holder.”

Moreover, and very important:

The absence of any evidence of the actual downloading of Penguin’s four works by users in New York… not fatal to a finding that alleged injury occurred in New York.

(Emphasis added.)

It should be noted that the Court limited its ruling to the situs-of-injury issue and pointed out that, on remand, plaintiff would still need to meet the burden of showing jurisdiction under CPLR 302(a)(3)(ii) — namely, that defendant derives substantial income from interstate commerce and that defendant expected its actions to have consequences in NY. Moreover, plaintiff would have to satisfy the other elements of due process. So while this case does, to some extent, expand the reach of NY’s jurisdiction in the internet infringement context, it by no means provides a sure-fire way for NY plaintiffs to drag non-NY defendants into court.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.


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