It’s the Big Apple for Penguin v Buddha

The borderless nature of the internet was instructive in a recent copyright case in the US.

The New York State Court of Appeals was asked to decide the appropriate jurisdiction for a copyright case, involving the uploading of full copies of a number of books published by Penguin.  The court was not considering the substance of the claim, only the appropriateness of the jurisdiction.  

American Buddha, an Oregon not-for-profit based in Arizona, published full copies of four Penguin books on two of its websites – the American Buddha Online Library and the Ralph Nader Library. The actual uploading would have occurred in either Oregon or Arizona, where American Buddha’s servers are located. American Buddha sought to dismiss Penguin’s action on the grounds of insufficient standing to bring the action in New York.

The court disagreed, pointing out that the nature of the internet rendered the actual place that the breach took place – that is, the place where the books were uploaded to American Buddha’s servers – “inconsequential”.  The court didn’t require evidence that anyone had actually downloaded the books within the state of New York.  Once uploaded, the books were “instantaneously available” to internet users anywhere.

Furthermore, the court ruled that an additional loss suffered through copyright breach of this kind was “the loss or diminishment of the incentive to publish or write”.

This decision can be seen as a pragmatic judicial response to the jurisdictional issues created through digital technology and media, allowing large tracts of data to be made simultaneously available at no real cost to those uploading or downloading the material.  It will be interesting to see if this reasoning can be used by publishers to bring cases against foreign infringers into the New York justice system.  

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