Choice of Law for Online Copyright Infringement: A Proposal for the Law Applicable to Ubiquitous File Sharing

Abstract

The Internet has become a hotbed of activity for creating and sharing content. YouTube, SoundCloud, Flickr, Dropbox, Facebook ... all of these websites encourage and enable laypersons to create and share content with the world. However, these platforms also enable users to easily share content copyrighted by third parties. Copyright infringement is generally considered tortious. Torts are usually governed by the law of the country in which the tort is committed. However, various international instruments now expressly restrict, “making a copyrighted work available, online. If a single user uploads a file that is accessible to the world, has that user committed a tort in every country around the world? If so, applying the traditional rules would result in a multitude of laws applying.This paper delves into whether ubiquitous online infringements should be considered to occur in a single country or multiple countries. It analyzes the position for down-loaders, up-loaders, and online service providers. Ultimately, based on arguments for certainty, sovereignty, and uniformity; it concludes that alleged ubiquitous infringements for all of these parties should be decided under the lex loci actus — the law of the country where the actor was physically located at the time of the relevant act.