Intellectual Property - Copyrights - The World in U.S. Courts: Summer-Fall 2018

No Copyright Infringement or Damages Where Infringing Videogame Was Uploaded to and Downloaded from Apple App Store Servers in California From Non-US Locations

Goes International, AB v. Dodur Ltd., US District Court for the Northern District of California, May 20, 2018

Goes is a Swedish company that markets the copyrighted video game, Bubble Bust! It sued Dodur, a Chinse company, for copyright infringement in connection with Dodur's marketing of a similar game to consumers in the US and worldwide. Evidence suggested that the infringing game had been downloaded millions of times, mostly in Asia but in many cases from servers (including the Apple App Store) located in the US. In connection with Goes's motion to enter a default judgment, a magistrate judge in Norther California first noted that earlier decisions had confirmed that personal jurisdiction existed over Dodur. The focus of the present opinion was assessing damages in applying US copyright law to cross-border downloads.

The Court first confirmed that damages were available in respect of US consumers that downloaded the infringing game. As relevant here, it then addressed the much larger universe of consumers outside the US who downloaded the game from the Apple App Store, whose servers were in the US at the time. Dodur had argued that all its employees were in China and they had uploaded the game to the Apple App Store from China, and that any allegedly infringing conduct was extraterritorial to the US and therefore not within the reach of the Copyright Act. Goes argued that the acts of uploading to, and downloading from, US servers were predicate acts of infringement that permitted damages to be assessed no matter where the consumer was located—indeed, without either the consumer or Dodur's employees knowing where the servers were located.

The Court noted that prior cases had found US infringement where "physical predicate acts" of infringement (such as the copying of a videotape) had occurred in the US, enabling infringing acts to occur elsewhere. It found no comparable acts here and observed further that the location of the Apple App Store servers was entirely a matter of fortuity and Apple's private business decisions. The Court thus concluded that "pass-through use of third-party servers" in connection with downloads and uploads from outside the US would not establish a US copyright violation or support an award of damages.