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Journal of Technology Law & Policy

Document Type

Article

Abstract

Despite the coming of age of Internet dissemination of international works of authorship, and the general ease of obtaining a variety of international newspapers, records, and films, the current state of U.S. law in the field of ascertaining choice of law in copyright matters remains in an “isolationist position.” As asserted in Itar-Tass Russian News Agency v. Russian Kurier, Inc., the “[c]hoice of law issues in international copyright cases have been largely ignored in the reported decisions and dealt with rather cursorily by most commentators.” Despite deeper implications of foreign laws regarding international dissemination of domestic works of authorship, U.S. courts are now engaging in complex copyright choice of law analyses and are contemplating the application of foreign laws with little basis or knowledge of the underlying copyright policies implicated under such laws.

Rather than adopt a differential policy of recognizing foreign intellectual property law systems, some domestic courts have evaded such direct acknowledgement of these pervading issues. They have done so to employ the easier approach of developing strategies to “limit the efficacy of foreign intellectual property laws in favor of extraterritorial application of domestic laws.” A fundamental precept in copyright law is that the Copyright Act has no extraterritorial application for actions outside the United States. Although this rule is almost uniform throughout domestic copyright jurisprudence, there is still some dispute among circuits regarding the extent of this limitation in applying U.S. copyright law to foreign acts. Specifically, there exists a split of authority regarding the extraterritorial reach of U.S. copyright law between the Second and Ninth Circuit Courts of Appeals. The rift stems from whether U.S. copyright law is implicated when a predicate act occurs within the United States regarding an otherwise completely international dissemination of an infringing work of authorship.

This Article outlines this apparent split of authority regarding the extent of applying domestic copyright law towards almost exclusively foreign activities. More importantly, this Article takes the position that this split of authority should be eliminated. This Article also denotes both the utter lack of uniformity and deference required when addressing foreign law the important underlying foreign cultural differences in addressing choice of law in international copyright.

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