Plus or Minus America: Spanski, Geoblocking Technology, and Personal Jurisdiction Analysis for Nonresident Defendants

The use of a geoblock—technology that restricts access to websites based on user location—is a controversial topic, and one that plays a role in defining the scope under which nonresident defendants may be subjected to the personal jurisdiction of U.S. courts in copyright infringement cases. For example, a recent D.C. Court of Appeals case, Spanski Enterprises, Inc. v. Telewizja Polska, S.A., involved a Polish television network whose geoblock setting, known as “minus America,” failed to restrict website access in violation of a Canadian company’s exclusive rights under the U.S. Copyright Act. Cases like Carsey-Werner Co., LLC v. British Broadcasting Corp. and Triple Up Ltd. v. Youku Tudou Inc. also dealt with nonresident defendants whose public performances reached the U.S. in violation of another’s exclusive rights under the Act. However, in reviewing these and other cases that dove deep into personal jurisdiction analysis, one sees that there is room for simplification. This Article discusses the various components of jurisdictional analysis with regard to nonresidents whose content reaches the U.S. and results in a potential violation of the Copyright Act. Looking at approaches from the Ninth Circuit, Second Circuit, and others, courts—weary of mandating geoblocking technology for websites—have held that general jurisdiction plays a much smaller role in personal jurisdiction analysis, leaving specific jurisdiction as the avenue in which a court may subject the defendant to personal jurisdiction. A review of the relevant case law shows that there are gaps, and that filling those gaps can make the inquiry more straightforward. Consequently, this Article proposes a revision to the analysis through an amendment to the Copyright Act specifying that reasonable efforts to implement a geoblock will negate the exercise of personal jurisdiction over a nonresident defendant. The proposal would be subject to any jurisdictional immunity exceptions under applicable law, or to any contractual agreements to the contrary. Without imposing mandatory geoblocks, the proposed amendment will not only simplify the analysis, but it will also provide clarity to nonresident defendants regarding their potential liability when their activities reach the U.S, while allowing courts to continue exercising personal jurisdiction within the bounds of due process. That simplicity and clarity may also provide an incentive for internet actors to take responsibility in recognizing the territorial limits of copyright law.

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