Copyright Tourism: Korean Companies Sue Guy From Australia For Copyright Infringement... In California

from the jurisdiction dept

Wed, Dec 28th 2011 12:06pm — Mike Masnick

In the past we've talked about the horrors of libel tourism -- mostly involving the UK. That's where a plaintiff living outside the UK sues a defendant also outside the UK for defamation... in the UK. The reasoning is that the UK's defamation laws are especially draconian and harsh on defendants. There have been efforts to change that and the US government was supposedly so offended by this practice that it passed the SPEECH Act a year and a half ago to make it clear that Americans wouldn't be subject to such libel tourism rulings.

But is the US now becoming a home to copyright tourism lawsuits just as bad as the UK's libel tourism efforts?

Eric Goldman points us to a bizarre default judgment ruling out of a district court in Northern California involving a bunch of Korean entertainment companies suing a guy who lives in Australia. The Korean companies claim that the guy, Kenny Tran, infringed on their copyrights by distributing their works. As the court describes it:

Defendant uses his websites to disseminate to internet users content, in the form of both music and accompanying artwork, that has been unlawfully copied.... To listen to or download an infringing copy of a work, the user clicks on a link next to an image of the copyrighted album cover.... The user is then directed to a third-party website where the user may download the album that was uploaded onto the third-party website by Plaintiff.... Users are able to download unauthorized copies of the DFSB Plaintiffs' copyrighted material without Plaintiffs� permission.

If the allegations are true, then it appears that Tran has, in fact, violated DFSB's copyrights. But the big issue that doesn't make any sense at all: why is this in a US court? Again, the plaintiffs are in South Korea. The defendant is in Australia. The music in question is Korean pop music. There's simply no reason that this is in a US court, and it seems like the court should have just tossed it out on jurisdiction issues. Instead, it goes forward and issues a default judgment against Tran, who, one would imagine, had no reason to travel from Australia to the US to deal with this.

So how does the court defend California as a reasonable jurisdiction? It seems to come down to the fact that Tran uses Facebook, Twitter and YouTube... and all three are California companies.

Moreover, it appears as though Defendant has specifically used several California companies to further his scheme of perpetrating illegal downloads. Tran uses California companies Facebook, Twitter, and YouTube to promote the websites he operates, and to allow users access to the pirated copies of the copyrighted music and artwork. Additionally, it appears as though Defendant uses a privacy service located in California to shield his identity.... In light of the nature of the websites run by Defendant, it appears that Defendant�s activities are expressly aimed at California.

That seems like a very broad definition of targeting California, and it means that users of a ton of popular online services that can be used to break the law are now subject to California jurisdiction, no matter where they are in the world. That seems extremely questionable, and open to widespread abuse.

Separately, the court again goes a little wacky in arguing that Tran knew that his activities would "cause harm in California" because he's using California companies:

DFSB and the other plaintiffs, however, are not residents of California. Nonetheless, Defendant likely knew that his activities would cause harm in California. Tran relied on several California companies to further his scheme of providing copyrighted music to a world-wide audience of users. Additionally, given the evidence provided by Plaintiffs of the reach of Defendant�s activities, Tran likely knew that harm � in the form of distribution and download of copyright protected material � would be suffered in the forum state.

I don't see how this makes any sense at all. If the "harm" was done to the copyright holders, what does it matter where Facebook, Twitter and YouTube are located. Tran wasn't targeting "harm" at any of those companies. The court also later claims that it's "not clear" if the plaintiffs could bring similar suits in South Korea or Australia. Why? Again, this simply makes no sense.

It seems like with a ruling like this, plenty of others could start dragging pretty much anyone who may infringe on their works to court in California. This seems ripe for serious "copyright tourism" cases. Separately, it raises questions about the claims from SOPA supporters that copyright holders can't go after "foreign" infringers. Apparently a district court in Northern California disagrees...

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Filed Under: australia, california, copyright, copyright tourism, kenny tran, korea
Companies: dfsb

34 Comments

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AdamBv1 (profile), 28 Dec 2011 @ 12:05pm

One question...
Is said KPop available for purchase in either Australia or California?
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iamtheky (profile), 28 Dec 2011 @ 12:14pm

Why cant a bankrupt state gets to make money in the same fashion as DHS? We can finally send the illegals back to their own TLDs where they belong? #amirite
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John Doe, 28 Dec 2011 @ 12:23pm

What is a court without cases?
A court has no power without cases. In this case, the judge probably felt extra powerful by making an international ruling.

My question is, how do you enforce the ruling?
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Richard (profile), 28 Dec 2011 @ 12:30pm

Re: What is a court without cases?
More to the point - why are US taxpayers paying for this?
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John Doe, 28 Dec 2011 @ 12:38pm

Re: Re: What is a court without cases?
I agree, why can't this judge be removed from office? There appears to be no way to hold judges accountable. They are above the law. Heck, they are the law.
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Justin Olbrantz (Quantam), 28 Dec 2011 @ 12:43pm

Naturally
This only makes sense. Copyright infringement is among the most heinous of all crimes, right up there with rape and terrorism. It only makes sense that one should be able to shop around to look for the harshest penalty possible when prosecuting it.
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MrWilson, 28 Dec 2011 @ 12:47pm

Re:
We should also be concerned about anchor subdomains on hosting sites that illegals use to infiltrate Uh-Merica.
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Lord Binky, 28 Dec 2011 @ 12:48pm

That's odd, I must have missed the part for copyright tourism in the Visit California commercial I just saw.
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Anonymous Coward, 28 Dec 2011 @ 12:48pm

Re: Re: Re: What is a court without cases?
Heck, they are the law.

Medieval politicians in black robes.
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Anonymous Coward, 28 Dec 2011 @ 12:54pm

Re:
Get sued and then you will have a reason to Visit California and you can mention it to the tourism board
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me, 28 Dec 2011 @ 1:01pm

So now when Tran laughs the judgement off, will he be extradited to the U.S. for failure to comply, at the Taxpayers expence. This is just getting ridiculous. The worst part is this is all over Korean Hip Hop, Thats a Joke in it's self.
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V, 28 Dec 2011 @ 1:01pm

It's California
It's california... what do you expect? They are like their own little ultra liberal world run by their totalian Hollywood masters.

All Hail the Hollywood.... All Hail the Hollywood...
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Anonymous Coward, 28 Dec 2011 @ 1:11pm

I see Koreans have enough money to buy judges in California, good for them.
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heyidiot (profile), 28 Dec 2011 @ 1:16pm

It Is So Ordered
Lucy H. Koh = Emperor Norton
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NullOp, 28 Dec 2011 @ 1:31pm

Copyright
This case is in a U.S. court, specifically California, because the Koreans think they can win big here. Personally I am outraged since neither party resides in the states. This case, and all like it, should be dismissed and the Koreans fined for wasting the courts time and resources.
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Anonymous Coward, 28 Dec 2011 @ 1:31pm

You wouldn't have these problems if just bought the CDs like you were supposed to you thieving freetards
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LF, 28 Dec 2011 @ 1:36pm

Waste of Tax Dollars
CA sits in one of the most liberal (thus, loose constructionalist) US circuit courts. This can be a good thing, e.g., for serious civil rights cases. But this also means that there will be plaintiffs who take advantage of our system to seek loopholes (like basing their case on the HQs of the tech companies cited) to inflect maximum damages.
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DogBreath, 28 Dec 2011 @ 1:47pm

Re:
I'm sorry but it looks like I'm going to have to sue you.

You see, I recently trademarked "thieving freetards" on Earth's Moon. This trademark applies across all celestial bodies known or unknown, from now until the end of time.

Expect to to be sued on the planet Mars, as that is where I expect to get the most favorable ruling.
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MAJikMARCer (profile), 28 Dec 2011 @ 2:15pm

Re:
Geez, if you are going to troll put a little effort into it.
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asdasd, 28 Dec 2011 @ 2:55pm

But the US likes extraterritoriality in its laws. The Foreign Corrupt Practices Act makes provision for a Togolese citizen to be sued by the US DoJ for trying to bribe a Somali official during a visit to Uzbekistan if said bribe is in USD, even if it had nothing to do with the US... This is the same, it has nothing to do with the US, but it is remotely linked to a US company, therefore the US will claim jurisdiction...
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Josh, 28 Dec 2011 @ 2:57pm

Re: What is a court without cases?
How did they even verify the defendant existed? They don't even have an address as far as I can see! Do they not put contact details in these rulings? There would be a lot of people named Kenny Tran in Australia I would think. Australian white pages: "K. Tran" = 464 Link

Was the defendant even properly notified? I'd say it would be very dificult to enforce this ruling based even on the lack of details on who the defendant is! A verdict has been reached, justice will be done... just as soon as we identify the defendant.
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Haywood (profile), 28 Dec 2011 @ 3:34pm

So if they win how do they collect
What would be ones incentive to pay, unless you wanted to visit the place (USA), where you were found to be guilty.
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btrussell (profile), 28 Dec 2011 @ 3:36pm

Two articles without comments?

Are comments down or am I in the twilight zone?
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btrussell (profile), 28 Dec 2011 @ 3:45pm

Re: So if they win how do they collect
Similar to what I was thinking before I checked my connection status.

Along with the chilling effects of anyone outside of the US wanting to use US services. So long Youtube, been nice knowing ya! (I don't get twitfaced)
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Mike Masnick (profile), 28 Dec 2011 @ 3:49pm

Re:
Are comments down or am I in the twilight zone?

We screwed something up and deleted a bunch of comments. Working on it...
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TtfnJohn (profile), 28 Dec 2011 @ 3:55pm

Re:
There's just not much to comment on here because it's so ridiculous.

Though it looks, I guess, that Northern California must need copyright infringement lawsuits in the same way East Texas needs patent violation lawsuits. Even trolls gotta have a home. Now we know the copyright trolls have a nice home amongst the redwoods in Northern California while patent trolls have one in the dust, tornadoes and hurricanes of East Texas!!
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LDoBe (profile), 28 Dec 2011 @ 4:42pm

Re: Re:
If trolls need a home, wouldn't they be most comfortable under a bridge? ;-]
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Anonymous Coward, 28 Dec 2011 @ 4:46pm

Talk about venue shopping.
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Anonymous Coward, 28 Dec 2011 @ 4:54pm

>The court also later claims that it's "not clear" if the plaintiffs could bring similar suits in South Korea or Australia.

Australia I can somewhat understand since there's the whole issue with iiNet, but South Korea? It's a regularly brought up example of how IP laws eliminated piracy by the IP ACs. The court makes absolutely no sense on that statement.
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G Thompson (profile), 28 Dec 2011 @ 9:13pm

Re:
Just based on the information in above article and without reading the CA court filings there is enough to bring suit within Australia if they so desired, though as someone else says they need first to find the actual respondent (I personally know a Ken Tran in Sydney and he hates being called Kenny) and that is very problematic based on what information they have (or don't have)

Strangely a CA court has no jurisdiction whatsoever on any Australian in Civil proceedings like this unless that Australian then travels into a jurisdiction (within 5-7 yrs) where that court has Jurisdiction (and that most likely would ONLY be within State of CA and not whole of USA).. Even Korea would most likely be an ok place to fly to under just this order.

Why this Korean company chose to forum shop outside of where they should of is a good question and might be part of a wider case they are trying to make, maybe for finding out specifically via Facebook et.al the actual IP addy's that this respondent allegedly has used, or other identifiable info like address, email, etc supplied by respondent.

Though I for one never give American (or even AUST) Websites my real information, and even our govt advises citizens not too, unless I am purchasing product/services, and even then it goes to a PO Box. And for those that say. Oh that is unlawful it breaches TOS/EULAs etc.. Who cares, Australian privacy laws overrule TOS/EULAs , just ask Sony Microsoft etc about that... so sad.
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G Thompson (profile), 28 Dec 2011 @ 9:59pm

Judgement cannot be enforced in Australia
As Eric has updated on his blog no Australian courts (Federal, State, Local) will ever enforce any Civil judgements coming out of any USA courts, and that includes Federal, State, or Supreme since we have no reciprocity with the USA on Foreign judgements.

I still suspect they either wanted an easy judgement that they could show to Korean Media or similar, or did not do their legal due diligence first on whether a win would mean anything.. or both.

If they had gone to a UK court, Canadian Court, or even a Korean court (yes their own country) they would have been able to get any Australian court to enforce the order.

Interestingly they might be able to go to a Korean court to get it enforced first within Korea and then go to an Australian Court and then TRY to get it enforced under our "Foreign Judgments Act (1992)" Though that is very convoluted and would be highly unlikely to succeed, though who knows.

Also on a further note, I cannot find anything that shows Mr Trans address of service (not going to pay for US PACER access so might be in system somewhere) and nothing that shows in Australia that he has actually been served LEGALLY with papers either via an Authorised Private server or Court Appointed (which needs to be done under even the Hague Convention that Justice Ho waffles on about). It wouldn't surprise me that they have either served papers to the wrong address, or to the wrong person, or even have not served anything at all and just stated they have (seen that before).
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PaulT (profile), 29 Dec 2011 @ 1:17am

Re: One question...
Yep, that was my first thought. Is this just another case where a fan is helping to service an ignored niche market, and the record company have called in the lawyers rather than thinking "hmmm... if we were to just remove regional restrictions on our digital product and allow people..."
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TheNamelssOne, 30 Dec 2011 @ 12:58am

Re: Re:
haha! Nice Reductio Ad Absurdum! Love you man!
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