that the servers enabling access to the
www.google.fr Web site are located in
California, the basic technology of the
Google Images search engine belongs
to Google Inc., and the registered
office of Google Inc. is in the U.S.
The court agreed with Google. It
said that “the country where protection is claimed,” in Article 5 of the
Berne Convention, should be read
as “the place where the proximate
cause of the infringement occurred
. . . and not that of the place where
the harm or loss was sustained.” The
court considered such an approach to
be appropriate “in cases of complex
offenses such as copyright infringements occurring in various signatory
countries of the convention.”
The court relied on the most recent
of the appellate decisions cited by
Google, one involving the distribution
of the film Waterworld. In SAIF, the
court expanded the proximate-cause
reasoning to the Internet context.
Adding insult to injury, or perhaps
the reverse, the court ordered SAIF to
pay Google € 30,000, plus costs, under
the French Code of Civil Procedure.
For what it’s worth, which may
not be a sou in France, North American case law on the applicable law
for transborder Internet transmissions
seems to suggest a different result.
The most directly relevant cases are
probably National Football League v.
TVRadioNow Corp. and the Canadian SOCAN decision. Both involved
transmissions of television signals
through the Internet from a server in
one country to end users in another
country, and both found that jurisdiction and substantive law were proper
in the country of reception rather
than the country in which the server
was located.
Because the issues in both NFL and
SOCAN were grounded in domestic
law and the WIPO Copyright Treaty,
respectively, rather than in the Berne
concept of “the country where protection is claimed,” the courts were
necessarily asking slightly different
questions than the one confronted
in SAIF. Still, to those familiar with
the decisions from our own continental backyard, the French decision to
apply U.S. law seemed a bit like a bolt
from the bleu.
If followed, the French court’s
decision in SAIF could be extremely
important with respect to its choice-of-law analysis, and influential in other
countries that follow the Berne Convention. However, the decision has
been controversial in France, and an
appeal is expected.
Robert Clarida is a partner at Cowan,
Liebowitz & Latman and author of the
forthcoming Copyright Law Deskbook.
New York lawyer Robert Bernstein is a
past president of the Copyright Society
of the U.S.A. A version of this article
appeared in New York Law Journal.
PROFESSIONAL ANNOUNCEMENTS
We are pleased to announce that
Robert W. Morris
has joined the firm as Partner
in the Intellectual Property Department.
Kramer Levin Naftalis & Frankel LLP
1177 Avenue of the Americas
New York, NY 10036
Phone: 212.715.9100
Fax: 212.715.8000
www.kramerlevin.com
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