SAN FRANCISCO — A three-judge U.S. Court of Appeals panel issued an unusual set of four separate opinions yesterday in a copyright enforcement case involving AMA Multimedia in the U.S. and the Poland-based owners of tube site ePorner.com, highlighting the complex intricacies of trying to enforce digital copyrights across international jurisdictions.
The 2-1 majority decision ended up favoring Marcin Wanat, the Polish owner of ePorner, over the plaintiff, U.S.-based copyright holder AMA Multimedia.
AMA Multimedia is the operator of more than 20 adult membership sites, including Passion-HD.com, Tiny4K.com and PornPros.com. The company has been waging legal battles against several sites — most prominently Porn.com — which they claim have pirated their content.
In 2015, AMA initiated the lawsuit that resulted in yesterday’s appeals decision. Originally filed against the unknown owners of ePorner, AMA obtained discovery revealing that Polish national Marcin Wanat operated the allegedly infringing site.
As legal news site Law.com reported, although ePorner “describes itself as a hub for users to contribute adult content, AMA alleges that Wanat and other ePorner operators personally upload content, sometimes adding an ePorner watermark to obscure AMA’s watermark.”
ePorner, Law.com explained, “doesn’t charge for views, but instead serves ads using a third-party that geolocates them by country, so that U.S. viewers see ads in English, French viewers see adds in French and so on. About 20% of ePorner’s views come from the United States, which AMA alleges is by far the largest segment globally.”
AMA had appealed before the Ninth District a lower court decision establishing that U.S. federal courts lack personal jurisdiction over Polish national Wanat.
Three Judges, Four Opinions
Two of the three appeals judges, Ryan Nelson and Sandra Okuta, agreed that federal courts lack personal jurisdiction over Wanat (Opinion No. 1).
The third judge, Ronald Gould, dissented (Opinion No. 2).
But, as Law.com points out, “the Ninth Circuit’s agreement in AMA Multimedia v. Wanat ended there. Nelson wrote in a separate concurrence to his own opinion that ‘perhaps the door remains slightly open’ for U.S. District Judge Roslyn Silver of the District of Arizona to consider the effect of intervening law — Europe’s General Data Protection Regulation in particular — that was enacted during the pendency of the appeal” (Opinion No. 3).
Okuta disagreed with Nelson, stating that for her the appeals ruling “means this case is over” and Judge Silver “now has the authority to do only one thing,” that is “remove the case from her docket” (Opinion No. 4).
Concern for Copyright Holders
Battleship Stance’s Jason Tucker — a veteran industry expert whose copyright management and enforcement clients include many notable players in the adult industry — told XBIZ that the 2-1 ruling would mean adverse effects for copyright protection across borders.
“The dissent was right,” Tucker said. “It’s not complicated. Wanat, ‘continuously and deliberately exploited’ the U.S. market. The site operators make money from U.S. based users, using U.S. vendors and pirated content.”
Copyright holders, in any industry, Tucker continued, “should be concerned if this ruling holds because the court opined that in certain circumstances, a Polish based pirate can steal and profit in the U.S. without consequences. Looking forward to an En Banc review."
Judge Gould left the door open for such a development, suggesting in his dissent that the full Ninth Circuit should consider the entire ruling En Banc.
“The United States has a strong interest in enforcing federal intellectual property laws and providing redress for injuries felt within its borders,” Gould wrote.
En Banc, French for "on the bench,” is a legal term for a session in which all judges of a particular court hear a case.