What court would I use for a DMCA lawsuit?
January 28, 2010 3:28 PM Subscribe
A web host has refused to comply with a DMCA notice I've sent. I am interested in filing a lawsuit, but the web host (an individual/small company, not one of the big ones) has claimed I'd need to file in the federal court located in the state where he is incorporated. Is this true? Why can't I file in my own state if I'm protecting my own copyrighted material?
Response by poster: I'm not taking his advice, just curious if his claim rings true. If I decide to pursue the lawsuit I will definitely consider getting a lawyer involved -- just hoping someone would know something about jurisdiction is all.
posted by justonegirl at 3:35 PM on January 28, 2010
posted by justonegirl at 3:35 PM on January 28, 2010
It *might* be true. You really need to check with a lawyer with all the details of where you are, where the company is, and what law might control. Jurisdiction can depend on more facts than you've given here.
posted by motsque at 3:39 PM on January 28, 2010
posted by motsque at 3:39 PM on January 28, 2010
i would think that no lawyer worth their salt would answer this question online with the provided information (which is to say, not much).
the only thing i can find that refutes his claim (and it is tenuous at the very best) is that viacom sued youtube in federal court in new york. i'd guess from the companies' histories that youtube and google are both incorporated out of california.
posted by nadawi at 3:45 PM on January 28, 2010
the only thing i can find that refutes his claim (and it is tenuous at the very best) is that viacom sued youtube in federal court in new york. i'd guess from the companies' histories that youtube and google are both incorporated out of california.
posted by nadawi at 3:45 PM on January 28, 2010
Look, I don't mean to be harsh, but you really just need to contact a lawyer. The problem here is the guy knows, probably through direct experience, that the vast majority of people who threaten a lawsuit don't follow through, which is why he didn't comply with your takedown request.
Maybe he'll take you more seriously if you pay a lawyer to write him a cease and desist letter with a deadline.
posted by MegoSteve at 3:46 PM on January 28, 2010 [4 favorites]
Maybe he'll take you more seriously if you pay a lawyer to write him a cease and desist letter with a deadline.
posted by MegoSteve at 3:46 PM on January 28, 2010 [4 favorites]
In MPAA vs. RealNetworks Inc., the MPAA (headquartered in Los Angeles) sued Real Networks (headquartered in Washington) for DMCA violations in the U.S. District Court in Los Angeles.
posted by Mike1024 at 3:51 PM on January 28, 2010
posted by Mike1024 at 3:51 PM on January 28, 2010
i would think that no lawyer worth their salt would answer this question online with the provided information (which is to say, not much).
More than that, it would be an ethical violation for a lawyer to do so. Lawyers get in trouble for dispensing casual legal advice.
I also suggest talking to a lawyer.
posted by HabeasCorpus at 3:58 PM on January 28, 2010
If I decide to pursue the lawsuit I will definitely consider getting a lawyer involved
If you do not even know the answer to the question you posted above and you decide to pursue a lawsuit, you ought to do far more than "definitely consider" getting a lawyer involved.
You're already dealing with jurisdictional issues, to say nothing of the fact that copyright law in general and the DMCA in specific are (in general) not kind to laypersons, as many things that people think they know about that area of law are utterly false.
But, as the others above have said, your question cannot be answered here without more information and shouldn't be answered here regardless.
posted by toomuchpete at 4:04 PM on January 28, 2010
If you do not even know the answer to the question you posted above and you decide to pursue a lawsuit, you ought to do far more than "definitely consider" getting a lawyer involved.
You're already dealing with jurisdictional issues, to say nothing of the fact that copyright law in general and the DMCA in specific are (in general) not kind to laypersons, as many things that people think they know about that area of law are utterly false.
But, as the others above have said, your question cannot be answered here without more information and shouldn't be answered here regardless.
posted by toomuchpete at 4:04 PM on January 28, 2010
I am not a lawyer.
Have you tried talking with the upstream provider? If this is a small host, it might listen to its (probably sole) connection.
You shouldn't take legal advice from the person you're trying to sue OR from here. Neither that advice, nor the view you imply with your closing question, nor any of the comments here about where a company is headquartered or incorporated will give you an adequate understanding of the law of personal jurisdiction, if such an understanding can be said to exist with regard to Internet postings.
A lawyer admitted to the bar of your state will be able to analyze your facts, the long-arm statute of your state, and any other relevant law (including Constitutional case law) to determine whether you can (or, depending on the strength of your claim, should) file suit in your state's federal courts. He or she might also be able to gin up an appropriately threatening letter, or advise you about the practicalities of filing suit in another state. Talk to one.
posted by deeaytch at 4:06 PM on January 28, 2010
Have you tried talking with the upstream provider? If this is a small host, it might listen to its (probably sole) connection.
You shouldn't take legal advice from the person you're trying to sue OR from here. Neither that advice, nor the view you imply with your closing question, nor any of the comments here about where a company is headquartered or incorporated will give you an adequate understanding of the law of personal jurisdiction, if such an understanding can be said to exist with regard to Internet postings.
A lawyer admitted to the bar of your state will be able to analyze your facts, the long-arm statute of your state, and any other relevant law (including Constitutional case law) to determine whether you can (or, depending on the strength of your claim, should) file suit in your state's federal courts. He or she might also be able to gin up an appropriately threatening letter, or advise you about the practicalities of filing suit in another state. Talk to one.
posted by deeaytch at 4:06 PM on January 28, 2010
Response by poster: I misspoke, I will retain a lawyer if I go through with the suit. Just trying to determine if any general rules existed regardling jurisdiction on these types of suits. Thanks for the advice, everyone.
posted by justonegirl at 4:07 PM on January 28, 2010
posted by justonegirl at 4:07 PM on January 28, 2010
Yes, she should talk to a lawyer, and yes there is not enough detail here to give any self-help guidance (much less legal advice, which no one is going to do anyway). But I'm surprised no one has come through with anything particularly instructive on the issue. For instance, does DMCA have its own venue provision? Does venue default to the long arm statute for the state where the district court sits? What's the state of the law generally with respect to proper venue for internet suits?
I don't know any of the answers, but I'm surprised, OP, that you're catching so much flak. People ask much crazier legal questions all the time. Good luck! (I am not your lawyer, this is not legal advice, and I know absolutely nothing about this whatsoever.)
posted by Admiral Haddock at 4:10 PM on January 28, 2010 [3 favorites]
I don't know any of the answers, but I'm surprised, OP, that you're catching so much flak. People ask much crazier legal questions all the time. Good luck! (I am not your lawyer, this is not legal advice, and I know absolutely nothing about this whatsoever.)
posted by Admiral Haddock at 4:10 PM on January 28, 2010 [3 favorites]
Response by poster: Thanks, Admiral Haddock. You may not be my lawyer but I wouldn't have minded consulting you on my question phrasing -- the things you mentioned in your first paragraph is exactly the kind of thing I was curious about. And sorry, all, for being unclear about that; it's been kind of a frustrating week as far as the copyright enforcement topic is concerned.
posted by justonegirl at 4:16 PM on January 28, 2010
posted by justonegirl at 4:16 PM on January 28, 2010
Wikipedia, as usual, has a lot of interesting general information that shouldn't be relied on but doesn't look half bad. Why not look up some of the terms if you want to know just "something about jurisdiction?"
Jurisdiction links to
Personal Jurisdiction links to
Venue, for just a few non-exhaustive examples.
However, for the reasons mentioned above, reading pages like these will not answer your "Why can't _I_" question.
posted by deeaytch at 4:21 PM on January 28, 2010
Jurisdiction links to
Personal Jurisdiction links to
Venue, for just a few non-exhaustive examples.
However, for the reasons mentioned above, reading pages like these will not answer your "Why can't _I_" question.
posted by deeaytch at 4:21 PM on January 28, 2010
Best answer: 28 USC section 1391
(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in
(1) a judicial district where any defendant resides, if all defendants reside in the same State,
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or
(3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.
(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in
(1) a judicial district where any defendant resides, if all defendants reside in the same State,
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or
(3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.
(c) For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. In a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts.
Because you would be suing under federal law (copyright infringement), look to subsection (b). A corporation resides wherever it has substantial contacts with a state and where it's incorporated.
Diversity of citizenship means when you and a defendant reside in different states.
posted by lockestockbarrel at 4:36 PM on January 28, 2010
(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in
(1) a judicial district where any defendant resides, if all defendants reside in the same State,
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or
(3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.
(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in
(1) a judicial district where any defendant resides, if all defendants reside in the same State,
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or
(3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.
(c) For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. In a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts.
Because you would be suing under federal law (copyright infringement), look to subsection (b). A corporation resides wherever it has substantial contacts with a state and where it's incorporated.
Diversity of citizenship means when you and a defendant reside in different states.
posted by lockestockbarrel at 4:36 PM on January 28, 2010
A corporation resides wherever it has substantial contacts with a state OR where it's incorporated.
posted by lockestockbarrel at 4:38 PM on January 28, 2010
posted by lockestockbarrel at 4:38 PM on January 28, 2010
Best answer: Okay, I think it's time for a systematic answer. IAAL, though not your lawyer, but this is an issue any lawyer can answer without ethical problems.
The legal issue here, as gestured at above, is jurisdiction, i.e. the power of a court to hear cases and enforce its decisions. Jurisdiction has two main components, "personal jurisdiction" and "subject matter jurisdiction".
"Personal jurisdiction" is a court's ability to bring a particular person (which includes corporations) under its authority. A person who neither resides in nor has contact with the geographical division in which a court sits cannot be brought into court there involuntarily. So I, being a resident of Indiana, cannot be sued in Montana, because I've never been there and do nothing which affects anyone in the state. But Viacom can sue YouTube in New York, because both have offices there.
So if the guy you're taking about here really is a small-time operator, it may be the case that you're going to need to file suit in a court which has personal jurisdiction over him. To find out whether or not you actually need to do this, you need to get a lawyer, who will be able to analyze the facts and apply the relevant law.
"Subject matter jurisdiction" is a court's ability to hear cases on a particular issue. For example, only Federal Bankruptcy courts hear bankruptcy cases, because they are the only courts in the country authorized to hear those cases. Federal courts generally cannot hear cases which turn purely on state law unless the parties are from different states. At issue here is the fact that the DMCA, like all copyright laws, is federal law. State courts can and do hear cases on federal law, even copyright law, but a case dealing with a federal issue can be "removed" to federal court by the defendant at his option. So if you filed this DMCA case in state court wherever this bum is, his lawyer would probably file to remove the case* before the ink had dried on your complaint, meaning you'd probably save everyone time if you just filed in federal court.
Again, you're going to need a lawyer to see this thing through, but come on people, there are plenty of general principles we can get into without giving legal advice.
There are a variety of reasons why one might prefer federal court--or not--but this is too big a topic for an AskMe on jurisdiction. Suffice it to say that they're generally perceived as being less plaintiff-friendly than state courts.
posted by valkyryn at 4:57 PM on January 28, 2010 [2 favorites]
The legal issue here, as gestured at above, is jurisdiction, i.e. the power of a court to hear cases and enforce its decisions. Jurisdiction has two main components, "personal jurisdiction" and "subject matter jurisdiction".
"Personal jurisdiction" is a court's ability to bring a particular person (which includes corporations) under its authority. A person who neither resides in nor has contact with the geographical division in which a court sits cannot be brought into court there involuntarily. So I, being a resident of Indiana, cannot be sued in Montana, because I've never been there and do nothing which affects anyone in the state. But Viacom can sue YouTube in New York, because both have offices there.
So if the guy you're taking about here really is a small-time operator, it may be the case that you're going to need to file suit in a court which has personal jurisdiction over him. To find out whether or not you actually need to do this, you need to get a lawyer, who will be able to analyze the facts and apply the relevant law.
"Subject matter jurisdiction" is a court's ability to hear cases on a particular issue. For example, only Federal Bankruptcy courts hear bankruptcy cases, because they are the only courts in the country authorized to hear those cases. Federal courts generally cannot hear cases which turn purely on state law unless the parties are from different states. At issue here is the fact that the DMCA, like all copyright laws, is federal law. State courts can and do hear cases on federal law, even copyright law, but a case dealing with a federal issue can be "removed" to federal court by the defendant at his option. So if you filed this DMCA case in state court wherever this bum is, his lawyer would probably file to remove the case* before the ink had dried on your complaint, meaning you'd probably save everyone time if you just filed in federal court.
Again, you're going to need a lawyer to see this thing through, but come on people, there are plenty of general principles we can get into without giving legal advice.
There are a variety of reasons why one might prefer federal court--or not--but this is too big a topic for an AskMe on jurisdiction. Suffice it to say that they're generally perceived as being less plaintiff-friendly than state courts.
posted by valkyryn at 4:57 PM on January 28, 2010 [2 favorites]
IANAL, but read about diversity jurisdiction if you have questions about people from different states suing each other in federal court and how that can work.
posted by ishotjr at 5:18 PM on January 28, 2010
posted by ishotjr at 5:18 PM on January 28, 2010
ishotjr, that's not a bad link, but this is an issue of federal law, so diversity considerations don't enter into it. If you are suing on the basis of a federal law, you can almost always get into federal court, regardless of where you and the defendant live.
posted by valkyryn at 5:22 PM on January 28, 2010
posted by valkyryn at 5:22 PM on January 28, 2010
IANAL, but, what valkyryn said.
If I'm not mistaken, SCOTUS has VERY LOW threshold criteria for construing "interstate commerce" under the interstate commerce clause of the US Constitution. (Hence easy forum shopping to Missouri in personal injury class-action lawsuits.)
posted by ZenMasterThis at 5:34 PM on January 28, 2010
If I'm not mistaken, SCOTUS has VERY LOW threshold criteria for construing "interstate commerce" under the interstate commerce clause of the US Constitution. (Hence easy forum shopping to Missouri in personal injury class-action lawsuits.)
posted by ZenMasterThis at 5:34 PM on January 28, 2010
Response by poster: Thanks again to everyone who provided a smidge of advice (yes, including those who reminded me of the complexity of the situation!)
valkyryn, thanks especially to you for all the detail -- just curious though, is there any general guideline as to which particular federal courthouse would hear a case when the parties are in different states?
posted by justonegirl at 5:42 PM on January 28, 2010
valkyryn, thanks especially to you for all the detail -- just curious though, is there any general guideline as to which particular federal courthouse would hear a case when the parties are in different states?
posted by justonegirl at 5:42 PM on January 28, 2010
ZenMasterThis, the interstate commerce clause doesn't actually have much to do with establishing jurisdiction. It's in Article I, which delineates Congress's ability to make legislation, not the Court's ability to hear cases.
The reason you can forum-shop like that is because any company big enough to be the target of a class-action lawsuit almost certainly has sufficient contacts in any state you care to name for a court there to establish personal jurisdiction.
posted by valkyryn at 5:43 PM on January 28, 2010
The reason you can forum-shop like that is because any company big enough to be the target of a class-action lawsuit almost certainly has sufficient contacts in any state you care to name for a court there to establish personal jurisdiction.
posted by valkyryn at 5:43 PM on January 28, 2010
Best answer: justonegirl, it would probably be the federal district court in which the defendant maintains his domicile. There are usually multiple courthouses in each district, but I'm not sure which one makes a difference, as their jurisdiction extends throughout the district.
But remember that you can sue anyone, corporation or individual, in a forum where they have sufficient contacts. What constitutes sufficient contacts is something you're going to have to talk to with a lawyer, as it's highly fact dependent.
The flipside is that if the plaintiff is obviously "forum shopping," i.e. bears no significant relationship with a place they've filed suit, and it would be inconvenient for the defendant to show up there, the defendant may move to remove/relocate to a place more convenient for them. Depending on the facts, this may or may not be granted.
I think that's about all I can give you without giving actual legal advice. Suffice it to say that 1) jurisdiction is actually kind of a big deal, and 2) yes, this jerk may be right in his claim that you'd have to sue him out there, but 3) you're going to need a lawyer to figure out what to do here.
posted by valkyryn at 5:53 PM on January 28, 2010
But remember that you can sue anyone, corporation or individual, in a forum where they have sufficient contacts. What constitutes sufficient contacts is something you're going to have to talk to with a lawyer, as it's highly fact dependent.
The flipside is that if the plaintiff is obviously "forum shopping," i.e. bears no significant relationship with a place they've filed suit, and it would be inconvenient for the defendant to show up there, the defendant may move to remove/relocate to a place more convenient for them. Depending on the facts, this may or may not be granted.
I think that's about all I can give you without giving actual legal advice. Suffice it to say that 1) jurisdiction is actually kind of a big deal, and 2) yes, this jerk may be right in his claim that you'd have to sue him out there, but 3) you're going to need a lawyer to figure out what to do here.
posted by valkyryn at 5:53 PM on January 28, 2010
I am not the OP's lawyer. This is not legal advice.
Seconding AdmiralHaddock about the propriety of this question. Also seconding this from valkyryn:
Also, the specific venue statute for copyright actions is 28 USC ยง 1400:
posted by Conrad Cornelius o'Donald o'Dell at 9:17 PM on January 28, 2010
Seconding AdmiralHaddock about the propriety of this question. Also seconding this from valkyryn:
But remember that you can sue anyone, corporation or individual, in a forum where they have sufficient contacts. What constitutes sufficient contacts is something you're going to have to talk to with a lawyer, as it's highly fact dependent.Jurisdictional issues become even trickier when dealing with the Internet.
Also, the specific venue statute for copyright actions is 28 USC ยง 1400:
(a) Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask works or designs may be instituted in the district in which the defendant or his agent resides or may be found.To give a bit of the flavor of what these kind of Internet-related copyright jurisdictional/venue disputes turn on, here is a 9th Circuit case out of California. (Venue and jurisdiction are different issues, but closely related.) Note that this case might be wholly irrelevant to the OP's situation.
posted by Conrad Cornelius o'Donald o'Dell at 9:17 PM on January 28, 2010
I guess I misunderstood. I thought that OP was wanting to sue in her state's court and they were telling her t had to be in federal court instead, but yeah DMCA, duh. OP needs a lawyer, though. It's their job to know the procedural stuff so you don't have to worry about messing it up.
posted by ishotjr at 9:25 PM on January 28, 2010
posted by ishotjr at 9:25 PM on January 28, 2010
I am not your lawyer and I have not read any of the responses here.
A fun question though is if this company is big enough to have contacts with your state. If they are a nationwide company that solicits and accepts websites from anywhere in the country, including your state, you could probably just file a claim at your local Federal Court.
Venue is a very difficult topic that many lawyers screw up, and I would ignore the advice of a nonlawyer potential defendant.
posted by 2legit2quit at 12:01 AM on January 29, 2010
A fun question though is if this company is big enough to have contacts with your state. If they are a nationwide company that solicits and accepts websites from anywhere in the country, including your state, you could probably just file a claim at your local Federal Court.
Venue is a very difficult topic that many lawyers screw up, and I would ignore the advice of a nonlawyer potential defendant.
posted by 2legit2quit at 12:01 AM on January 29, 2010
You must ask a lawyer you've hired to sue these people. This is beyond your capabilities. A very fact-sensitive question. There's not only where you can sue, but also where it is best for you to sue. Take no advice given here.
posted by Ironmouth at 5:36 AM on January 29, 2010
posted by Ironmouth at 5:36 AM on January 29, 2010
This thread is closed to new comments.
posted by MegoSteve at 3:33 PM on January 28, 2010 [13 favorites]