Thursday, July 24, 2008

Infringement and the Foreign Sovereign Immunities Act

May a foreign government be sued in U.S. courts for infringement occurring in the United States? The answer, provided by the Foreign Sovereign Immunities Act, 28 U.S.C.A. §§ 1602 to 1611, is no. Section 1603 states: “Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.” Exceptions are provided in section 1605:

(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case—
(1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver;
(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.


Given the clear basic immunity, cases focus on the exceptions. One discussion of the exception is in Leutwyler v. Office of Her Majesty Queen Rania Al-Abdullah, Leutwyler v. Office of Her Majesty Queen Rania Al-Abdullah, 184 F. Supp. 2d 277 (S.D. N.Y. 2001), which involved a dispute between a photographer hired to take pictures of the Queen of Jordan. In reviewing the plaintiff's argument that the defendant's activities fit with the exceptions to FSIA immunity, Judge Lynch wrote:

[I]t is clear that Leutwyler has alleged that the Defendants engaged in at least two series of acts that were unmistakably commercial in nature. First, he argues that the Defendants entered into a contract for him to travel to Jordan to photograph the Royal Family and to grant Queen Rania a limited license to use the pictures for personal use and distribution to Middle Eastern print media. …

… If representatives of the Royal Family arranged for Leutwyler to photograph them, develop the prints, and assign to them rights over the resulting photos, that activity is indistinguishable from the garden-variety commercial transactions that families or business entities throughout the world enter into with photographers to obtain portraits for home or office display


… Second, Leutwyler argues that by allegedly furnishing photos taken by Leutwyler for use in the Jordan Diary, a publication that has been sold in the United States, the Individual Defendants facilitated a venture that was unmistakably commercial in nature. … Once again, while the purpose of publishing the diary may have been governmental (disseminating information about Jordan and encouraging tourism), the nature of the activity (publishing and selling books) is clearly commercial.

Leutwyler has therefore sustained his burden of demonstrating that the Individual Defendants engaged in certain “commercial activity,” as that term is defined in § 1603(e), that could give rise to subject matter jurisdiction under the FSIA.

Similarly, in Los Angeles News Service v. Conus Communications Co., Ltd., Los Angeles News Service v. Conus Communications Co., Ltd., 969 F. Supp. 579 (C.D. Cal. 1997), the court rejected a claim by the Canadian Broadcasting Corporation that its broadcast of the plaintiff's footage was not commercial within the meaning of the exemption.

The FSIA (not to be confused with the similarly acronymed FISA), was raised unsuccessfully again less than a week ago in Santilli v. Cardone, 2008 WL 2790242 (M.D.Fla. July 18, 2008)(No. 8:07-cv-308-T-23MSS). Here are the facts from the court’s opinion:


The pro se plaintiff sues the defendants Cornell University (“Cornell”), Instituto Nazionale Fisica Nucleare (“INFN”), and the Universita' Del L'Aquila (the “University of Aquila”). Cornell owns and operates arXiv, an Internet-based collection of physics manuscripts. The plaintiff alleges that after he attempted to post several of his manuscripts to arXiv's high energy physics section, the arXiv administrators relocated the manuscripts to the general physics section. Meanwhile, physicists Fabio Cardone (“Cardone”), Roberto Mignani (“Mignani”), and Alessio Marrani (“Marrani”) successfully posted their manuscripts to the high energy physics section. The plaintiff alleges that the physicists' papers “violate the most basic laws in physics,” plagiarize the plaintiff's works, and violate the plaintiff's copyrights. The plaintiff alleges that INFN provides financial support to Cardone, Mignani, and Marrani, and that the University of Aquila employs Cardone. Cornell, INFN, and the University of Aquila move to dismiss the plaintiff's claims in the third amended complaint, and the plaintiff responds in opposition.

The University of Aquila claimed immunity under the FSIA, arguing that it was an organ of the Italian government. As noted by the court:

The “organ of a foreign state” requirement commends consideration of (1) whether the foreign state created the agency for a national purpose, (2) whether the foreign state requires the hiring of public employees and pays their salaries, (3) whether the foreign state funds the agency, (4) whether the agency holds an exclusive right to some right in the state, and (5) whether state law treats the agency as dependent on the foreign state.

The University argued it was an organ of the States because it receives approximately seventy-five percent of its funding from the Italian government, because the Italian government oversees and controls the University's budget, and because the university “conducts research that serves a national purpose.” Not enough the court held. What was required was that:

(1) that the university's purpose of teaching and conducting research serves a national purpose, (2) that the Italian government actively supervises the university or requires it to hire public employees, (3) that the university holds exclusive rights, or (4) that Italian law treats the university as dependent upon the government.

In the end, this holding didn’t matter because the court found there was no personal jurisdiction and the copyright claim – for plagiarism, is not a legally supportable claim.

7 comments:

MZ said...

Great post. It is interesting to see how institutions that are considered to be government entities in one country are not considered to be so in another. Query whether the typical character of the institution in the US (e.g., a university) influences the decision regarding the nature of the foreign institution.

As an aside, the CBC is the Canadian Broadcasting Corporation (as opposed to Company)

Anonymous said...

The plaintiff in this case, it should be noted, suffers from a rather poor reputation in the physics community, and apparently has a history of vexatious litigation.

He operates a website promoting a purported new reactor technology (and related business venture), widely considered dubious, and apparently has filed numerous lawsuits (acting pro se) against various critics and perceived rivals.

So... I doubt there is any interesting or useful precedent to be found in this case--it's just another example of the justice system disposing of a lawsuit that never should have been filed in the first place. Frivolous lawsuits seldom make for interesting case law, except when determining where the boundaries of frivolty lie.

William Patry said...

Anon, the point of the post had nothing to do with this plaintiff, but rather with a statute that some copyright lawyers may not have come across.

Sandy Thatcher said...

So, does this mean that in most foreign countries, where higher education is controlled by the central government, universities get a free pass on using U.S. copyrighted works with virtual impunity? Is there any recourse available to sue individuals, as under U.S. sovereign immunity law, at least for injunctions to stop the allegedly infringing activity? Or is the only recourse to the country's domestic copyright law? (In many less developed countries, there is of course a very expansive interpretation of what can be done for educational purposes.)

Jessica said...

While I am reading your STEPHEN STEWART MEMORIAL LECTURE, I can't help thinking why not try your blog again.

I am so surprised to find that the old posts have come back. I think I am certainly one of those people who strongly beg for the restoration of the old posts, if no new posts will be written, (which I, like many others earnestly long for). When I was in China, I did have problem in accessing the website that contains the posts. I even have to resort to a proxy for the purpose of reading the posts. Now I am in the U.K., I find it's absolutely smooth to visit your blog. That's fantastic.

Thanks a lot for restoring these posts.

By the way, would you mind my saving them as a folder for later access? Each time as I try to make an in-depth probe to a problem or topic, I will find your posts constructive and thought-provoking from different perspectives.

Amanda said...

FSIA was one of the main topic of my school's moot court competition here. I didn't expect to see it pop up in copyright, but thanks for the interesting blog commentary :-)

Anonymous said...

It is interesting to note that Cornell University has removed the articles in the arXiv. Cardone, Mignani and Marrone articles no longer are listed.Was it fear of further action or did they see some merit in the complaint by Santilli?