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

2. 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?

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

4. 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

5. 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?

6. 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.

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

8. 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.

9. 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.

10. 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.

11. MANDELL MENKES LLC 11 Securing the Protection of our Enduring and Established Constitutional Heritage Act  Signed by President Obama 8-10-10  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.

12. 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.

13. 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.”

14. 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”

15. 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