Judicial Competence and CloudToshiyuki Kono
Kyushu University

September 15, 2003

October 17, 2012

“Moving to the cloud lets TPB move fromcountry to country, crossing borders seamlessly
without downtime. All the servers don’t evenhave to be hosted with the same provider, oreven on the same continent”

“All communication with users goes through TPB’s loadbalancer, which is a disk-less server with all theconfiguration in RAM. The load balancer is not in thesame country as the transit-router or the cloud servers”“The communication between the load balancer and thevirtual servers is encrypted. So even if a cloud provider
found out they’re running TPB, they can’t look at thecontent of user traffic or user’s IP-addresses.”

“If the police decide to raid us again there are noservers to take, just a transit router. If they follow
the trail to the next country and find the loadbalancer, there is just a disk-less server there. Incase they find out where the cloud provider is, allthey can get are encrypted disk-images”
https://www.facebook.com/ThePirateBayWarMachineThree types of disputes“Right” holder vs. alleged infringer
special jurisdiction over infringement“Right” holder vs. Cloud SP
General jurisdictions
Service user vs. Cloud SP
contract
choice of court agreement

Subject-matter / exclusive jurisdiction:
two legal traditions
Common-law countries

Civil law countries• In personam jurisdiction• Subject-matter jurisdiction• General rule (domicile)• Special jurisdiction rules• Exclusive jurisdiction

Subject-matter / exclusive jurisdiction:
two legal traditions (contd.)
Lucasfilm vs Ainsworth [2011]
UKSC 39

Exclusive jurisdiction
Ex. Brussels Regulation, Art 22(4):“proceedings concerned with theregistration or validityof patents, trade marks, designs,
or other similar rights
required to be deposited orregistered”
Ex. Japanese CCP, Art 3-5 (3):IP registered in Japan – Japanesecourt onlyPersonal Jurisdiction: analogy to Cloud?

A factory in Switzerland discards
polluted waste to Rhine river.
The damage occurs inSwitzerland, France
Germany, and Holland
Where should a plaintiff in theNetherlands sue?

eDate & Martinez caseSunday Mirror article ‘Kylie
Minogue is back with Olivier
Martinez’
French actor Martinez brought
an action in Paris: private life
Sunday Mirror: no substantial
link for a French court to assert
jurisdiction
Need for sufficient, substantial orsignificant link (BrusselsRegulation, Art 5(3))?
– Number of hits
– Targeting, Language?
– Parties’ Nationality/residence– Other factors?

Personal jurisdiction
ECJ: eDate Advertising GmbH v. X (C-509/09)
Olivier Robert Martinez v. Société MGN Limited (C-161/10)
Infringement of personal right via Internet‘the place where the harmful event occurred or may occur’,used in Article 5(3):• State of establishment of the publisher of the information
infringing personality rights, (all damages)• State in which the information was published and in which
the holder of personality rights claims to have been thevictim of an attack on his reputation, (local damage)• State where the ‘centre of gravity of the dispute’, among
the rights and interests involved, is located; (all damages)

Penguin v American Buddha, 16 N.Y.3d 295

Personal jurisdiction (contd.)
Penguin Group (USA) Inc. v. American Buddha, 640 F.3d 497(2011)
NY as “situs of injury” plus the following factors:
1. Infringement is in another state
2. Defendant "expects or should reasonably expect theact to have consequences in the state" and,3. "derives substantial revenue from interstate orinternational commerce."
4. "minimum contacts"
5. "traditional notions of fair play and substantial justice"= no Pandora’s box

CLIP Principles• Art 2:202: Jurisdiction of a court where alleged
infringement occurs or may occur, unless:– The defendant has not acted in that state to initiate or
further the infringement– Activities were not directed to that state• The scope of jurisdiction– Place of infringement: territorially limited jurisdiction– Cross-border jurisdiction:
PRINCIPAL PLACE OF
1. Jurisdiction pursuant to Art 2:202 andBUSINESS OF A
2. The infringer is habitually resident, andNATURAL PERSON
3. (a) Substantial activities in that state or(b) Harm in that state is substantial with regard to theinfringement in its entirety

Some considerations“Right” holder v. alleged infringer:
CloudAcceleration to focus on injury?

Injury + additional factors as tendency among existing
different approaches
harmonization through list up essentialfactors?
Requirements for recognition of foreign judgments to beharmonizedSome considerations (contd.)“Right” holder v. alleged infringer“Right” holder v. Cloud SP

Injunction and Enforcement:
Data Center as infrastructure? Cf. serverMore anti-suit injunction?
Cf. Microsoft Corp v. Motorola inc., 9th Cir,
No.12-35352, 9/28/12