Music Piracy Forum Shopping: Aussie Sued By Koreans In California

Music Piracy Forum Shopping: Aussie Sued By Koreans In California

If you’re a copyright owner and you believe someone is illegally distributing your material, what should you do? It’s not a question that lends itself to an easy answer, but choosing to sue the alleged offender somewhere they don’t live doesn’t look too good.

I’m pursuing this train of thought because of an unusual case that happened in the US recently. There’s a full account of the incident at Techdirt, but the quick version is this: a number of Korean music companies sued Kenny Tran, an Australian, for apparent repeated violations of their copyright. Tran allegedly distributed MP3 copies of Korean pop music through a variety of sites (many of which used variations of the word ‘honeydew’ in their name) and promoted their availability via social media. Takedown requests issued to hosting providers apparently resulted in the sites shifting hosts (and changing names).

The sites named in the lawsuit are currently not in operation, but if the screen grab you can see above (grabbed via the Internet Wayback Machine) is any indication, there might well be a case to answer: the MP3 sharing link via Twitter on that picture seems pretty unambiguous. (There’s a separate argument about whether making music freely accessible online ultimately benefits the artists, but the fact remains that it’s up to the copyright holder to choose if they want to pursue that path.)

Defending your copyright is a reasonable step to take, but what is odd is that the case was presented in California, rather than Seoul or Sydney. Tran didn’t defend himself in the case, so a default judgement found in favour of the music companies.

Law professor and blogger Eric Goldman notes that given that Tran is apparently Australian and the copyright owners are Korean, choosing to file in California seems like an example of “forum shopping”: choosing to fight a case in the country where you believe you’ll get a desired outcome, This has been seen previously in libel cases, but now seems to be spreading to copyright issues as well. What’s particularly odd is that the basis for that decision seemed to be the fact that Twitter, Facebook and YouTube are all based in California. As Goldman put it:

This ruling leaves open the big unanswered question: why the plaintiffs didn’t sue Tran in Australia? If they really wanted to shut him down, they are more likely to get the desired enforceability from an Australian court. One possibility is that the plaintiffs knew Tran would default in a US action but feared he would fight in Australia, so suing in San Jose was a quick way to get a default judgment. But is the default judgment actually worth more than the paper it’s printed on? I assume they will have some difficulty enforcing their damages award and even more difficulty enforcing the injunction given Tran is in Australia. If Tran breaches the injunction and is held in contempt by a US court, then what? Getting a quick but unenforceable win seems like an odd move.

This isn’t a clear-cut case of “all attempts to control online distribution are wrong”, and in the absence of a defence argument, it’s unclear whether or to what extent Tran broke the law, or whether the finding of $5,000 loss per alleged pirated track makes any kind of sense. But it’s disturbing to see US law applied in a context where its relevance and usefulness seems questionable.

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  • Microsoft, and I’m sure others too, have been fined for this kind of thing in the past where they will go to a locale where it is obvious the defendant can not get to in order to defend themselves.

    Surely it is Facebook, Twitter and YouTube that should be sued if the case has to have any plausibility being held in California. That would make sense.. sue them for allowing one of their users to continuously break their rules in order to breach their copyright.

  • Australian Courts (as noted by Leanne O’Donnell on the Goldman blog) won’t enforce any of this this. The key reason for choosing the USA is very likely the availability of statutory damages. Australia doesn’t have anything like this yet.

    I wonder if Mr Tran had appeared, whether he’d be able to make the argument that the dispute should have been decided on something other than the local laws of California, or if the Californian Court ought to have not heard the matter at all, on the basis of forum non conveniens.

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