SMART
PILL
A New French Twist
A French court applies U.S. law
in a copyright case against
Google.—By Robert Clarida and
Robert Bernstein
When eBay this summer lost
a closely watched case in
a French court— it was
held responsible for the
sale of counterfeit Louis
Vuitton Möet Hennessy goods on its
Internet auction site—many observers
detected a nationalistic bent in the
decision: an indication that France is
determined to protect its important
luxury goods industry and its valuable
trademarks.
But fewer observers have noticed
the decidedly unchauvinistic approach
that the French have applied in a
recent copyright case. In that case a
group of French copyright owners,
suing in Paris over an alleged violation of their reproduction and display
rights in France, under French law,
were told that the claim was governed
instead by U.S. law. Moreover, after
applying U.S. law, including the fair
use doctrine, which does not exist
under the French statute, the court
concluded that the (American) defendants did not infringe the rights of the
(French) plaintiffs.
These results are surprising because
the principle of territoriality requires
that acts of infringement occurring
in a particular country are dealt with
under the laws of that country. If
someone distributes a pirate edition
of a Harry Potter book in the United
States, for example, that infringement
will be governed by U.S. law, even
though the author of the book is Brit-
PAUL ANDERSON/GETTY IMAGES
ish, and even if the pirate is printing
the illicit copies in, say, India.
The French case, Société des Auteurs
des Arts Visuels et de l’Image Fixe (SAIF)
v. Google Inc. in the Paris Civil Court,
arose in a context that is by now quite
familiar: a dispute between photographers and Google over the use in
France by Web users of small-size,
low-resolution thumbnail images in
the Google Image search function. In
U.S. litigation, including Kelly v. Arriba
Soft2 and Perfect 10 v. Google Inc., such
use has been held to be a noninfringing
fair use.
Google did not contest the jurisdiction of the French court but sought to
have the merits of the case resolved
under the U.S. Copyright Act.
The parties agreed that France was
bound by Article 5 of the Berne Convention of 1886, which provides in
relevant part that “the extent of protection, as well as the means of redress
afforded to the author to protect his
rights, shall be governed exclusively by
the laws of the country where protection is claimed.”
The key question faced by the court
was the meaning of the phrase “the
country where protection is claimed.”
On the surface, the issue seems
straightforward: If French authors are
seeking to protect their works against
unauthorized Internet transmissions
accessible in France, France would
seem to be a strong candidate. SAIF
made that argument, asserting that
the proper interpretation should turn
on where the copyright owner suffers
loss. Merely looking to the location of
the physical servers from which the
unauthorized images are transmitted would be improvident, in SAIF’s
view, because under such a rule “it
would suffice to place the servers
in countries where there is no legal
protection of copyright for there to
be no preservation of any copyright
whatsoever.”
Google argued to the contrary, stating that “the country in which protection is claimed” should be read as the
country of the proximate cause of the
harm, and not the site of the damage.
Google cited two recent appellate-level decisions from the French Cour
de cassation to this effect, and noted
