International and DRM Cases in New Media Steve Baron November 30, 2010

MANDELL MENKES LLC 2 International Cases in New Media  Common issues:  What law applies?  Where can parties be sued?  “Personal Jurisdiction”  What impact on new (and old) media?

MANDELL MENKES LLC 3 Personal Jurisdiction – U.S.  Minimum contacts with forum  Compliance with basic due process

MANDELL MENKES LLC 4 Personal Jurisdiction – U.S.  Minimum Contacts with forum in a web- based world  Zippo sliding scale test:  Passive  Active  Integral  Caulder “effects” test:  Focus on where the plaintiff suffers harm

MANDELL MENKES LLC 5 Mardas v. New York Times Company  Which Court?  Who’s the plaintiff?  Who’s the defendant?  What are they fightin’ about?  What is the Court asked to decide?

MANDELL MENKES LLC 6 Mardas v. New York Times Company  Court = High Court of Justice – Queens Bench (United Kingdom)  Plaintiff = John Mardas  Defendants = New York Times and International Herald Tribune  The dispute involved alleged defamatory articles published in the UK (“charlatanism” and “lying”)  The High Court is asked to determine whether the “Master” (I.e. lower court) erred in dismissing the libel suit because there was insufficient publication in the UK.

MANDELL MENKES LLC 7 Madras v. New York Times Company  What does the High Court decide?

MANDELL MENKES LLC 8 Madras v. New York Times Company  The Master erred in dismissing the libel claims against defendants.  There were evidentiary issues concerning the nature and amount of publication in the UK.  In any event, the evidence presented suggested sufficient publication in the UK.

MANDELL MENKES LLC 9 Madras v. New York Times Company  What is the impact on media?  Possibility of foreign media being sued in the UK based on fairly limited publication in the UK.  “a few dozen hits could be enough to found a cause of action in England although damages would be likely to be modest.”  Silver lining: in the UK, the loser pays attorney’s fees of the winner.

MANDELL MENKES LLC 10 Libel Tourism  Defined: A plaintiff chooses the jurisdiction for a libel suit based upon where the law is likely to favor plaintiff’s case.  Was Mr. Madras a libel tourist?  He lives in Greece  Defendants were incorporated outside the UK  The amount of publication in UK was relatively small – as compared to the U.S. and France.

MANDELL MENKES LLC 11 Securing the Protection of our Enduring and Established Constitutional Heritage Act  Signed by President Obama  Aimed at curbing libel tourism  American courts are not to recognize foreign libel judgments unless defendant:  given the same 1 st Amendment protections available under federal and state law  Exercise of personal jurisdiction consistent with due process and Constitution.  Extends Section 230 protection to ICS providers who are found liable by foreign court, unless judgment consistent with Section 230.

MANDELL MENKES LLC 12 MGE UPS Systems v. GE Consumer – July 2010  Plaintiff = MGE UPS Systems  Defendants = GE Consumer et al. and Power Maintenance International (PMI)  Court = U.S. Court of Appeals (5 th Cir.)  Defendants admit to recovering laptop from a former PMI employee that contained hacked MGE software.  Jury awards $4.6 million to plaintiff for misappropriation of trade secrets and copyright violations.

MANDELL MENKES LLC 13 MGE UPS Systems v. GE Consumer  Defendants win a post-trial motion on DMCA claim.  Plaintiff appeals to 5 th Circuit on DMCA anti- circumvention claim  DMCA does not describe the type of “access” – controlling technological measures required to invoke DMCA protection.  This is issue of “first impression.”

MANDELL MENKES LLC 14 MGE UPS Systems v. GE Consumer  Court holds:  Plaintiff’s “dongle” does not itself protect against copyright violations, so the fact that it is circumvented does not give rise to a DMCA violation.  DMCA anti-circumvention does not apply to the use of copyrighted works after the technological measure has been circumvented.  No “fruit of the poisonous tree”

MANDELL MENKES LLC 15 Quote of the day  “We’re leaving.... If you’re so cosmic, you’ll know why.”  John Lennon – spoken to the Maharishi upon departure from India