Copyright Without Borders? Choice of Forum and Choice of Law for Copyright Infringement in Cyberspace

The disjunction between territorial treatment of copyright claims and the ubiquity of cyberspace has led some commentators to urge abandonment of landlocked notions of judicial and legislative competence. Since digital communications resist grounding in particular fora, or governance by individual national laws, these writers contend it would be best to devise a cyberian legal system that would supply cyber-specific substantive copyright law, and/ or virtual dispute settlers whose competence – and whose determinations – would transcend national borders. My analysis will be more earthbound. This is not to belittle the important ongoing efforts to achieve international harmony of substantive copyright rules. Nor is it in any way to disparage the virtual magistrate concept, under which parties (especially copyright holders and on-line service providers) would remit their disputes to on-line arbitrators. Rather, as a practical matter, I doubt that either of these approaches will immediately displace national disparities in copyright rules or adjudication in national courts. As a result, I will consider how courts may apply existing principles of judicial and legislative competence to resolve as fully as possible in a single forum a claim of multinational copyright infringement occurring through cyberspace. To keep an admittedly complex inquiry relatively simple, I will limit the focus of the analysis to U.S. legal concepts of judicial and legislative competence ... I acknowledge, however, that U.S. concepts may sometimes differ significantly from those applied in other common law or civil law countries