Copyright law is one of the most contentious issues around
right now, and in no area is this seen greater than online video, and
YouTube in particular.
The thing is, each country has their own way of dealing with
copyright
statutes, and upholding the laws involved.
Uri Geller, the famous spoon bender, if you believe that is
possible
purely with mind power, has now raised question about that territorial
approach.
Here, Jef Pearlman of Public
Knowledge details the bizarre case, and looks at the right and wrongs,
as well as the possible fallout.
Uri Geller Attempts to Bend Territoriality Using Only His
Lawyers
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 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.
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.
Conclusions
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.
Jef Pearlman is an author at Public Knowledge discussing public rights in the emerging digital culture. Post has Some Rights Reserved.
