Protecting against International Infringements in the Digital Age Using United States Copyright Law: A Critical Analysis of the Current State of the Law

I. INTRODUCTION With the advent of the Internet and its exploding use in the past few years, intellectual property protections have advanced to the forefront of conversation, litigation, and legislation as governments, businesses, and consumers strive to protect intellectual property while maintaining the independence of the end user in this new technological revolution. Of particular concern is the freedom and mobility the Internet has brought to software producers, consumers, and software piraters. Intellectual property protections that traditionally afforded adequate protection prior to the Internet revolution may, in some circumstances, inadequately protect certain types of intellectual property.' Software is of particular concern; by its nature software is easily copied without affecting the original or altering the software's functionality. Copyright law, by its territorial nature, does not adequately protect copyright owners' interests in an international context.' An individual who has been afforded a certain degree of copyright protection in the United States is not guaranteed protection against copyright infringements that may occur abroad, even though the copyright holder and the copyright infringer are U.S. citizens? Certain doctrines like contributory infringement and vicarious liability serve to deter extraterritorial would-be copyright infringers. Due to territorial limitations on U.S. law, however, these doctrines fall woefully short because U.S. courts cannot exercise subject matter jurisdiction over wholly foreign infringements, even though the infringement may be perpetrated by a U.S. entity.4 The territorial limitation on copyright restricts a court's ability to find subject mat ter jurisdiction, although a court may easily exercise personal jurisdiction.' Some courts have attempted to combat the subject matter jurisdiction question by finding that mere "authorization" in the United States of an extraterritorial infringing act constitutes actionable infringement,6 while other courts have maintained that "authorization" will not extend the application of copyright law to wholly foreign infringements.' One court explained the "authorization" problem this way: "Under [the current] view, a phone call to Nebraska results in liability; the same phone call to France results in riches. In a global marketplace, it is literally a distinction without a difference."8 In short, depending on a court's interpretation, the court may choose to interpret expansively subject matter based on copyright law to extend to extraterritorial infringements, or the court may seek to limit copyright subject matter's application by requiring a territorial copyright violation. The question is which view better purports to promote the copyright policies outlined by the legislative branch. This Comment seeks to address the problem of protecting copyrighted works from infringements occurring abroad. Currently, certain mechanisms exist to extend copyright protection to extraterritorial infringing acts, but those protective extensions of copyright law are limited in scope and rarely avail the copyright owner adequate legal protection in foreign jurisdictions. An expansive treatment of copyright law, as opposed to restricting copyright's extraterritorial application, can ensure that the copyright holder may litigate his claim domestically under U.S. copyright law. Litigating in the United States will reduce the cost of copyright enforcement, ensure a better incentive for the creation of copyrighted works, add certainty to the law, and protect the United States' investment in its intellectual property. Part II provides a background to the problem and defines the extraterritorial enforcement problem, including identifying copyright law's territorial limitations and the effect of those limitations on preventing copyright infringements abroad. This section also explores a limited number of situations where infringements abroad may be ac tionable under U. …