A Return to Lilliput: The LICRA v. Yahoo - Case and the Regulation of Online Content in the World Market

Abstract

Over the past three years, a see saw battle has raged in Paris, France and in the heart of Silicon Valley in Santa Clara County, California, over the regulation of content on the Internet. The arena for this battle is the case of LICRA v. Yahoo!, which pits two non-profit human rights groups in France against giant Internet search engine and information portal Yahoo!, Inc. (Yahoo). The issues are (1) whether Yahoo may be prosecuted in France under French law for maintaining both auction sites that sell Nazi-related items and information sites promoting Nazi doctrine and (2) whether U.S. courts should enforce the resulting judgment. The first section of this Article presents the laws governing Internet content providers and the jurisdictional regime that gave rise to this see saw battle. The second section examines a series of court proceedings. The first two proceedings in France in 2000 resulted in a French court order directing Yahoo to add geo-Iocation filtering software to its servers in Santa Clara. The subsequent California district court litigation filed in 2001 resulted in summary judgment for Yahoo. This judgment is on appeal. The third and final section explores the global implications of the French and U.S. proceedings. The section concludes that the international community should restructure certain principles governing international jurisdiction in Internet cases and adopt shared guidelines on online content available to the world market. These changes would promote the principle of international comity while allowing the Internet to retain most of its unique, borderless nature. Without such changes we may, like the people of Lilliput and Blefuscu in Jonathan Swift's © 2002 Marc H. Greenberg t Marc H. Greenberg is an Associate Professor of Law and the Director of the LL.M. Program in Intellectual Property Law at Golden Gate University School of Law in San Francisco, California. The author thanks his colleagues on the faculty, Clifford Rechtschaffen, Helen Hartnell, Helen Chang, Bernard Segal, Christian Okeke, and Sompong Sucharitkul for their help in shaping this Article and the concepts expressed. The author also thanks student research assistants Jonathan Bruce, Marie Galanti, and Juna Kim for their invaluable assistance. This Article is dedicated to Kim, without whose patience it would never have been completed. 1192 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 18:1191 Gulliver's Travels, be locked in senseless conflict for years over which end of the egg we should break, instead of developing the tremendous potential of the Internet as a means for truly global communication.