The U.S. Court of Appeals for the Second Circuit has certfied a question concerning the applicability of the New York long-arm statute to online copyright infringement to the New York State Court of Appeals. At issue is the application of N.Y.C.P.L.R. § 302(a)(3)(ii), which allows for jurisdiction over an out-of-state defendant with no contacts with New York, if, among other things, the defendant is alleged to have committed a tortious act outside the State that caused, and reasonably should have been expected by the putative defendant to cause, injury to a person or property within the State. The copyright owner contends that for purposes of assessing jurisdiction in a copyright infringement case, the injury occurs where the copyright owner is located, while the defendant contends that the situs of any injury suffered is the location of the infringer. In certifying the issue, the court commented that while the plaintiff did not argue that the fact that the injury occurred via the Internet affects the analysis of the jurisdiction issue, "we recognize that this factor may be relevant to the considerations underlying the definition of the situs of injury due to the speed and ease with which the Internet may allow out of state actions to cause injury to copyright holders resident in New York."
Penguin Group (USA), Inc. v. American Buddha, 2010 U.S. App. LEXIS 12162 (2d Cir. June 15, 2010) Download PDF