On 9/9/05, John Hasler <[EMAIL PROTECTED]> wrote: > If I find that Nokia is selling phones that infringe my copyright by > violating the terms of the license on my software I should not have to fly > to Finland to sue them. Fortunately, I do not, even in the absence of a > choice of venue clause.
That's correct (AIUI, IANAL) -- _if_ those phones are sold, by Nokia or their authorized agent, in your home country, giving your home court personal jurisdiction (license or no license), and _if_ their non-conformance to the provisions of your offer of contract is sufficient to deny them the defensive claim of license under your jurisdiction's rules. (In the US, for instance, a "violation" that does not strike to the heart of the bargain contained in the offer of contract is unlikely to result in any remedy other than a conditional injunction, i. e., start complying in good faith with whatever terms survive contract construction or else cease and desist.) The Berne Convention specifies more or less that you can exercise the same rights as a local copyright holder in other signatory countries, and that any registration formalities involved in the prosecution of your copyright are streamlined by presenting evidence of publication in your home country. It does not automatically give your home courts personal jurisdiction over people who make and distribute unauthorized copies, derivative works, etc. without a foothold on your home soil. In the hypothetical Nokia case -- a major company engaged in international commerce -- if Nokia has a branch office in your country, you may be able to file suit locally against them (in the forum where that branch is located) for breach of contract, using the fact that they are knowingly distributing your code in some other Berne Convention signatory as evidence that they have accepted the terms of your offer of contract. If they successfully defend by claiming that they never accepted the offer and hence there is no contract, then you should have an open-and-shut case for willful infringement -- but you're going to have to file it in the country where the infringement is happening. (That court should rule that the defendant is estopped from turning around and claiming license in the copyright case -- judicial estoppel crosses jurisdictional boundaries.) In any case, you have to start in a forum where there is a plausible case for jurisdiction over the breach of contract claim, and if neither the company's business activities nor the copying and distribution are located near you, you have to travel or face the likelihood of dismissal for forum non conveniens and/or lack of personal jurisdiction. > If someone in Indonesia is infringing my copyright in Indonesia I will, of > course, do nothing regardless of the presence or absence of a choice of > venue clause in my license: suing him in the US would be a complete waste > of time and I have no money for international ventures. > > > ...Or get him extradited somehow. > > Extradition has nothing to do with civil lawsuits. Note that, in any case, a choice of venue clause in a license (a species of offer of contract, remember?) only affects your ability to sue under contract. It cannot magically grant the licensor a right to sue under the statutory tort of copyright infringement in a jurisdiction where he otherwise could not; nor does it prevent his opponent from pleading license as a defense to copyright infringement. It might actually prevent the licensor from bringing a claim of breach of contract, as a counter-argument against the claimed license, in the court where the copyright claim must be pled, if that is not the specified venue; that depends on whether the court decides neither to strike the forum selection clause nor to rule that the claim of license within the copyright proceeding brings it into the proper scope of judgment anyway. (That's how contract topics wind up in US federal courts to begin with; some statutory consideration like copyright brings the case into federal subject matter jurisdiction, so the court also has to rule on contract issues under the appropriate state governing law.) In my opinion, choice of venue (forum selection) clauses are just not a good idea in situations like shrink-wrap licenses where the "minimum contact" standard of personal jurisdiction is not met. They're legitimate when they're used to reduce uncertainty about recourse in a negotiated contract. But they don't belong in form contracts unless there is a halfway legitimate reason why the _offeror_ shouldn't have to face lawsuits in a zillion jurisdictions from one event, and they shouldn't give the offeror access to a forum where personal jurisdiction over the _offeree_ wouldn't otherwise apply. Whether or not you approve of boilerplate on cruise tickets requiring that claims of negligence, vicarious liability, etc. (as well as straight breach of contract) be brought in the cruise line's home court, or shortening the period within which claims must be brought, you can at least point to a public policy justification and a transaction initiated by the passenger that is fundamentally a contract for services rather than purchase of a thing. As I understand it, even in countries (like the US) in which copyright violation on a sufficiently grand and deliberate scale can result in criminal penalties, you're unlikely to see an indictment followed by a request for extradition without presenting evidence of a successful civil suit for copyright violation, and you can't get anywhere on that without personal jurisdiction. IANAL and I suppose there could be a way around this, but what district attorney would seriously pursue a criminal charge when the copyright holder hasn't bothered to exercise his right to civil enforcement first? Cheers, - Michael
