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Ninth Circuit boosts efforts to sue overseas copyright infringers

The appeals court said U.S. courts have jurisdiction to hear copyright infringement cases against foreign entities when the entities put apps on the U.S. market.

PASADENA, Calif. (CN) — The Ninth Circuit Court of Appeals made it a little easier for U.S. book, movie and music publishers to sue overseas intellectual property pirates if they target the American market.

The court on Thursday overturned a federal judge's dismissal of a lawsuit by a California producer and distributor of Vietnamese music against a Vietnam-based website and app owner for lack of personal jurisdiction.

In an unanimous decision the Ninth Circuit panel said the judge had jurisdiction over the Vietnamese company, VNG Corp., because it intentionally sought out the music of California producer Lang Van Inc. for its Zing MP3 app and it made the app available in the U.S., where it has been downloaded more than 320,000 times.

"Although VNG argues its primary audience is in Vietnam, VNG released its Zing MP3 in English to the United States," said U.S. District Judge Joseph Bataillon, a Bill Clinton appointee from the federal court in Nebraska sitting on the panel by designation. "Absent release by VNG, this app was not available in the United States. Making Zing MP3 accessible to those living in the United States was purposeful."

An attorney for VNG didn't immediately respond to an email seeking comment on the ruling.

Cory Baskin, an attorney for Lang Van, said the company intends to prove at trial that VNG should be ordered to pay Lang Van millions of dollars in statutory damages and attorneys’ fees for its unauthorized distribution of thousands of copyrighted songs and albums to U.S.-based users of VNG’s popular Zing MP3 Music Service and Mobile Applications.

"After more than seven years of litigation seeking to hold VNG to account for its targeted infringement of Lang Van’s copyrights in and to its invaluable catalog of Vietnamese music produced in Orange County’s Little Saigon, the Ninth Circuit has finally ruled that Lang Van is entitled to its day in Federal Court," Baskin said.

The dismissal of Lang Van's lawsuit for lack of jurisdiction in 2019 prompted an outcry by U.S. intellectual property owners who have been facing an onslaught of overseas piracy and have limited means to seek redress.

"By closing the doors to U.S. courthouses through its overly narrow interpretation of personal jurisdiction, the district court’s decision threatens to deal a major blow to the ability of members of the book and publishing industry to enforce intellectual property rights against some of the most brazen and prolific infringers of content created and distributed in the United States," the Association of American Publishers said in an amicus brief in the appeal.

"Copyright owners’ ability to enforce their rights in U.S. courts against foreign defendants who commit infringement in the United States is critical in stopping digital piracy," the Motion Picture Association added in a separate brief. "All too often, foreign jurisdictions fail to enforce intellectual property rights, leaving American courts as the only forum in which copyright owners can vindicate their rights."

Lang Van, based in Westminster, California, was one of the first Vietnamese production companies established in the United States, according to its lawsuit. It has the largest library of content of any Vietnamese production company and owns the copyright to more than 12,000 songs.

VNG specifically sought Lang Van's music for its Zing app, according to the testimony of a former VNG employee, cited in the Ninth Circuit ruling. This employee testified that his job was to source and distribute through the Zing app songs "without regard to authorization from content owners." VNG offered over 2,800 of Lang Van’s songs to the public through Zing MP3.

In his opinion, Bataillon wrote the lower court was wrong to look only at whether VNG had a specific connection with California to determine whether the company could be sued there. The proper analysis, according to the panel, was under a federal rule that provides for jurisdiction over foreign defendants, who have ample contacts with the U.S. as a whole, "but whose contacts are so scattered among states that none of them would have jurisdiction."

U.S. Circuit Judge Jay Bybee, a George W. Bush appointee, and U.S. Circuit Judge Mark Bennett, a Donald Trump appointee, joined Bataillon's opinion.

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