In its recent ruling in Shropshire v. Canning, the Northern District of California denied defendant Aubrey Canning’s motions to dismiss plaintiff Elmo Shropshire’s claims against him for copyright infringement. Yes, that Elmo Shropshire—also known as Dr. Elmo, the singer of “Grandma Got Run Over by a Reindeer,” which was the subject of the good doctor’s litigation with Canning. Canning, a citizen of Canada, had created a video synchronizing still images of reindeer to a recording of the Grandma song made by the Irish Rovers (with proper licensing from Shropshire, which also gave Shropshire an interest in that recording). Canning then attempted to upload this video to YouTube’s Canadian website, www.youtube.ca; however, his video, which clearly constituted an infringement of Shropshire’s copyright in the US, went to a YouTube server in Mountainview, California.
The District Court stated that if Shropshire had never uploaded his video to YouTube, the creation of his video alone would not have violated US copyright law. Even if Shropshire had given copies of the video to his Canadian co-workers at their office Christmas party, or if he had sold copies of the video on the streets of a town in north Ontario, Shropshire could not have stated a claim against Canning in a US federal court. In its opinion, the District Court goes to some length in analyzing whether the extraterritorial aspect of the case should be understood as a jurisdictional issue or an issue of merits of the claim. On the strength of the Supreme Court’s ruling in Arbaugh v. Y & H Corp., 546 U.S. 500 (2006), the District Court ruled that limitations on the applicability of federal laws, such as the Copyright Act’s limitation to activities in the United States, are matters of fact, not jurisdiction. Thus, federal courts always have jurisdiction to hear cases arising under normal federal law such as the Copyright Act, but if the claim doesn’t meet a factual requirement, such having occurred in the US, it will be dismissed. Another way of thinking about this is that such requirements are matters for a 12(b)(6) motion, not a 12(b)(1) motion.
But it’s unclear whether the issue involved here really was extraterritorial. The Court states that infringing activity that occurs at least in part within the US will constitute a basis for a claim under the Copyright Act. The Court then cites two aspects of the case that indicate that infringing activity occurred within the US. First, Canning caused a copy of his video to be uploaded onto a server that was physically within the US. Second, once it was uploaded to YouTube’s server, Canning’s video could then be viewed by “potentially thousands” within the US. It is no great stretch of the jurisdictional imagination to arrive at the conclusion that a federal court should be able to adjudicate a claim involving a person from a foreign country who directly violated US law by uploading a file onto a US server. The user agreement Canning accepted when he uploaded his video actually stated that the server was in California. But what if the server he uploaded his video to was in Canada, even though the video would still have been available for viewing in the US? Can simply making a file accessible on the Internet that would violate US law if it were accessed in the US subject a person to full blown litigation in federal court? Any open website on the Internet can be accessed by “potentially thousands” in the US — that’s the point of the Internet. When combined with the Court’s reasoning on the jurisdiction matter, this would seem to indicate that not only do federal courts have jurisdiction to hear any claim arising from activity on the Internet, but they also cannot dismiss a claim involving an copyright infringement for reasons of extraterritoriality because the infringing work will always be accessible in the US. Because the District Court also lists the physical location of the infringing work as a reason for not dismissing the claim, it is unclear whether there still are any extraterritorial limitations on copyright claims. But after Arbaugh, courts may be moving in that direction. If that is the case, US federal courts may become the go-to forum for copyright enforcement on the Internet.