Bit Parts

The U.S. District Court for the District of Columbia issued a novel personal-jurisdiction ruling in a copyright infringement lawsuit brought against the Chinese Internet video-viewing website Youku. Triple Up Ltd. v. Youku Tudou Inc., 16-159. Triple Up claims it owns the exclusive Internet performance rights to three Taiwanese movies that one of its lawyers in the District of Columbia was able to stream from Youku's website. Youku claims: it licensed the right to stream the movies in China; used geoblocking to bar access to the films in the United States; nevertheless removed them from Youku's Chinese website a year ago; and that the movies must have been uploaded by its users. (Youku doesn't use geoblocking to prevent such uploading.) Dismissing the case for lack of specific personal jurisdiction over Youku, District Judge Randolph D. Moss observed: “Because geoblocking technology exists, Triple Up says, it is no longer the case that making a website accessible in the United States is 'an unavoidable side-effect of modern internet technology,' or that basing personal jurisdiction on website accessibility would 'almost always' expose the defendant to suit 'in any forum in the country.' To be sure, the proposition that a website's affirmative geoblocking efforts should weigh against the exercise of personal jurisdiction is unobjectionable. But Triple Up's proposed rule — which equates a failure to geoblock with purposeful availment — would effectively mandate geoblocking for any website operator wishing to avoid suit in the United States … and, indeed, could limit U.S. residents' access to what is appropriately called the World Wide Web. Perhaps, in the future, geoblocking will become sufficiently widespread that a failure to use it will be considered 'purposeful' and assigned jurisdictional significance. But Triple Up provides no factual basis for the [c]ourt to conclude that this is the case now ….” Judge Moss added: “The [c]ourt is unaware of any authority suggesting that a failure to act might constitute purposeful availment.”

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