The Multiplicity of Copyright Laws on the Internet

From the early days of the Internet, commentators have warned that it would be impossible for those who act on the Internet (“Internet actors”) to comply with the copyright laws of all Internet-connected countries if the national copyright laws of all those countries were to apply simultaneously to Internet activity. A multiplicity of applicable copyright laws seems plausible at least when the Internet activity is ubiquitous— i.e., unrestricted by geoblocking or by other means—given the territoriality principle that governs international copyright law and either the lex loci delicti or lex loci protectionis choice-of-law rules that countries typically use for copyright infringements. Commentators have advanced various proposals to eliminate this multiplicity of applicable national copyright laws. Some experts have called for a new and universal legal regime to govern the Internet that would be distinct from the legal regimes of individual countries; this proposal would result in a single global copyright law that would govern all Internet actors without regard to any particular national copyright laws. * Associate Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas. The author thanks Joost Blom, Paul Geller, Paul Goldstein, and Eric Priest for their comments and suggestions, and also thanks the participants of both the 2014 International Intellectual Property Scholars Roundtable and the 14th Annual Intellectual Property Scholars Conference. The author would like to express her gratitude for research support to Andrew Martineau at the Wiener-Rogers Law Library of the William S. Boyd School of Law, the library staff of the Max Planck Institute for Comparative and International Private Law in Hamburg, Germany, and the library staff of the Max Planck Institute for Intellectual Property and Competition Law in Munich, Germany. The author recognizes her colleagues in the International Law Association Committee on Intellectual Property and Private International Law for the continuing inspiration that they provide. The author thanks Gary A. Trimble for his valuable editing suggestions. 340 FORDHAM INTELL. PROP. MEDIA & ENT. L.J.[Vol. XXV:339 Other experts have suggested that the multiplicity be addressed by unifying national copyright laws and making the laws identical or almost identical; this suggestion is another way to make a single set of copyright law standards apply globally. Experts working at the intersection of intellectual property law and conflict of laws have proposed conflict-of-laws solutions to simplify the enforcement of copyright on the Internet; their solutions would not eliminate the differences among national copyright laws but would limit the number of national copyright laws that would apply to acts on the Internet in any given scenario. This Article posits that the multiplicity of applicable national copyright laws on the Internet is not as significant a problem for law-abiding Internet actors as some commentators fear. What makes the multiplicity workable for Internet actors are the realities—or inefficiencies—of crossborder copyright enforcement that de facto limit the number of potentially applicable national copyright laws. This Article reviews the solutions that have been proposed to address the multiplicity problem and examines the objections to the proposals that have already been or could be raised. The Article then analyzes the current realities of copyright enforcement on the Internet and contrasts the realities with the anticipated workings of the proposed solutions. INTRODUCTION 341 I. PROPOSALS FOR A GLOBAL COPYRIGHT 349 A. A Single Copyright Law for the Online Environment 350 B. Uniform National Copyright Laws 353 II. PROPOSED CONFLICT-OF-LAWS SOLUTIONS .... 355 A. The Localization Approach 359 1. Localization in the Place of Origin of the Alleged Infringement 361 2. Localization in the Copyright Owner’s Domicile 367 B. Factors Approach 374 C. Copyright Infringement as a Single-Place Tort 382 III. REALITIES AFFECTING THE MULTIPLICITY OF COPYRIGHT LAWS ON THE INTERNET 390 A. Limitations on Choice of Applicable Law 391 B. Limitations on Personal Jurisdiction 398 2015] A MULTIPLICITY OF COPYRIGHT LAWS 341 CONCLUSIONS 401