Because content posted online can be accessed nearly anywhere, courts regularly face the issue of whether they have personal jurisdiction over a defendant who posted material to the web or a social media site. Recently, one New York federal court held that the mere fact, standing alone, that copyrighted material posted online was accessible in New York did not create a “situs of injury” sufficient to support personal jurisdiction under New York’s long-arm statute.
In Pablo Star Ltd., et al. v. The Welsh Government, et al., the Ireland and UK-based owners of the copyright in two photographs of poet Dylan Thomas sued the Welsh government and its “Visit Wales” tourism bureau, as well as a number of content publishers, including the Tribute Content Agency, LLC, the Pittsburgh Post-Gazette, and the Miami Herald Media Co. While the Welsh government defendants were dismissed on sovereign immunity grounds, the court was left to consider whether it had personal jurisdiction over the publisher defendants, none of which were based in New York.
The court quickly rejected any arguments regarding general personal jurisdiction, which renders a defendant amenable to suit on all claims that could be asserted in a jurisdiction. The court recognized that establishing general jurisdiction is exceedingly difficult under prevailing Supreme Court precedent. Thus, the court turned to New York’s long-arm statute, which among other bases for obtaining jurisdiction over a defendant, would require “a tortious act [outside] the state causing injury to person or property within the state.”
The court found that, because intellectual property is intangible, the injury in copyright or trademark infringement is generally in the state where the intellectual property is held—that is, the domicile of the owner of the intellectual property at issue. The court held that because the plaintiffs are foreign corporations, the situs of the injury cannot be New York.
Plaintiffs argued that they were injured in New York “specifically due to lost or threatened business” as they were “deprived [of] the potential opportunity to license and publish their copyrighted photos here.” The court rejected this argument on two grounds.
First, as a matter of principle, such a “market harm” theory could justify jurisdiction “anywhere that the internet is accessible,” opening up a defendant to being sued anywhere and everywhere. Moreover, unlike most tort cases, where the location of plaintiff’s injury is often singular and identifiable, the injury in online copyright infringement cases is “difficult, if not impossible” to pinpoint to a particular geographic region.
Second, the court reasoned that, to the extent identifiable, the injuries in this case are the fees that should have been paid by the publisher defendants—none of which are based in New York. Therefore, the simple fact that “New Yorkers can access the infringing content online” is insufficient to establish personal jurisdiction in New York.
The Pablo Star case teaches that copyright owners cannot simply point to the fact that material has been posted online and sue anywhere in the United States. Copyright owners must still establish personal jurisdiction over each defendant they sue for infringement. In case like this—in which a foreign copyright owner named as defendants seven separate publishers that are located in various jurisdictions—a copyright owner may need to bring separate actions in different jurisdictions against each defendant. While onerous for foreign copyright owners, the outcome protects against hauling a defendant into a jurisdiction with which it may have few connections.
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