Re: Which license am I looking for?
On Wed, 21 Jan 2009 23:25:51 +0000
"Anthony W. Youngman" <firstname.lastname@example.org> wrote:
> In message <20090121115624.27b9b631@glh-hp-dv2940se>, Greg Harris
> <email@example.com> writes
> >On Wed, 21 Jan 2009 02:14:37 -0800
> >Steve Langasek <firstname.lastname@example.org> wrote:
> >> No, he's saying that if you *commit a tort against someone located
> >> in Utah*, you are subject to Utah state law. If you've committed
> >> a tort against someone located in Utah, it is absolutely not true
> >> that you have no connections with Utah.
> >> The question of how *much* of a connection you must have to a state
> >> in order to be subject to their law is a fuzzy one that does get
> >> debated by courts.
> >> >> We think it if the treaties between the nations allow for it. I
> >> >> know it has happened in the past, I really can't speak with any
> >> >> authority as to how often that happens and what sorts of law it
> >> >> covers. But in the world of torts (which is what we are talking
> >> >> about), I wouldn't be at all surprise to learn that I can bring
> >> >> a tort suit against a foreign national in their own
> >> >> jurisdiction but under *my* law. Understand the very important
> >> >> distinction between a criminal case and a civil case, such as
> >> >> torts. Different concepts, different policy objectives,
> >> >> different enforcement.
> >> > As I understand it, if it is legal in Britain then you cannot
> >> > touch me. End of story. Unless there exists a contract between
> >> > you and me that our dealings are covered by US law, then as a
> >> > British National resident in Britain, then any claim you make
> >> > against me must be under English law.
I'm afraid that you are simply wrong about this. Whether you think this
makes sense or not is not terribly relevant.
Let me give you an example. In the early 1980's the managers of various
Lloyds' syndicates, among others, were claimed to have agreed they
would not underwrite certain US reinsurance unless the primary coverage
(by US companies to their insureds) was written on certain terms.
Various parties in the US claimed that this conduct violated US
antitrust laws (as a boycott). The Lloyds' and other UK defendants
argued that their conduct (if it actually happened, which never got to
a factual determination) was expressly protected by UK law. The US
Supreme Court found that the UK defendants were subject to US personal
jurisdiction and their conduct was subject to US antitrust laws. The
case is ridiculously complicated and not really worth the effort, but
if you want to look it up it's available at:
This is not just some insane US drivel. It's really no different in
substance than EU competition law being applied to Microsoft. If you
want to derive benefit from doing business somewhere, you are subject
to the laws of that place.
> >> Even if this is nominally true under British law, there is
> >> certainly no reason for this to be the accepted norm under
> >> international law, and therefore not grounds for dismissal of a
> >> case brought against you in a US court. Just because you think
> >> you can *get away with* committing torts against US citizens
> >> doesn't mean the tort does not occur. Jurisdiction and
> >> enforceability are two different questions.
> >> For comparison with other European countries: it's been discussed
> >> on this list in the past (in connection with choice of venue
> >> clauses) that French law guarantees its citizens the right to
> >> defend themselves in their home court - but it does not say that
> >> the claim has to be brought under French law.
> >This thread gets into two separate doctrinal areas that even
> >specialist lawyers can regard as arcane for edge cases: personal
> >jurisdiction and choice of law. I read some postings on this list out
> >of personal interest, but I have little to contribute to most of the
> >discussion. I have done work on these issues, however, so maybe I can
> >add some clarity, even if it wanders further off-topic from the
> >original inquiry.
> >When a court concludes that it has personal jurisdiction over a
> >defendant, it means this court, for this defendant, for this claim,
> >has proper authority to deliver a judgment that may be enforced
> >against the defendant. For non-criminal cases, the court's analysis
> >generally will focus on the defendant's "contacts" with the
> >residents and territory of the government of which the court is a
> Put differently, do you mean that the court believes it actually has
> the ability to enforce a judgement?
No. Judgments are not self-enforcing. It does mean the court believes
its judgment is entitled to be enforced. Enforcing a foreign judgment
as a practical matter is yet another can of worms, but a UK court, for
example, is highly likely to accord great deference to a US judgment
as a matter of comity.
> >Two variations of a simple hypothetical fact pattern may illustrate
> >this. A New York resident is injured by a product manufactured and
> >sold by a German company in Germany and wants to sue that company in
> >a New York court for negligence in the manufacturing process. In
> >variation 1, the German company gets most of its revenue from export
> >sales and the New York resident bought the product in New York from
> >a store authorized by the German company to sell its products. In
> >variation 2, the German company is small and has no export sales;
> >the New York resident bought the product in Germany while on a
> >visit; and the injury occurred in Germany during that visit. The New
> >York court is more likely to find that it has personal jurisdiction
> >over the German company in variation 1 than in variation 2. (Even
> >though, in both variations, the claimed negligent manufacture took
> >place in Germany.)
> Hmmm ... two very interesting examples. Let's look at the German
> example ... I'd have said that variation 2 was a clear example of
> jurisdiction belonging in Germany. The only reason that a New York
> court might have to claim jurisdiction is that the victim is
> American. imho that's a clear case of extra-territoriality.
> Variation 1, imho, is also a clear case where New York jurisdiction
> *over* *the* *german* *company* doesn't apply. The company's agent is
> liable, and how the liability is split between them and the german
> company is a matter of contract.
> Note I'm a brit, so I can't speak for American law, but in both of
> those variations, for a New York court to claim jurisdiction over the
> German company seems to me to be a breach of natural/sensible justice.
You are about a half-century of legal development out of date if you
think a court would find no personal jurisdiction in variation 1.
> >Take a different case. A New York author writes and a New York
> >publisher distributes, only in the United States, a book that a UK
> >citizen claims to be libelous in a UK court. What threshold facts
> >must be present for the UK court to decide that it has some power
> >over the New York author?
> This is a BEAUTIFUL example! This basic premise has actually
> happened, iirc. And it has been decided, by the highest court in the
> land, that the only recourse to law in Britain is to confiscate any
> and every copy of the book that may end up under British
> jurisdiction. No action can be taken against the publisher (they're
> American), and no action can be taken against the author unless
> they're a British national (which in your example, they're not).
> Anybody importing the book commercially will be liable for damages
> for defamation. Any copies uncovered in transit may (probably will)
> be seized at the border or in the shop. Any copies that travellers
> have as personal reading matter will probably be ignored, but could
> be seized.
You are confusing personal jurisdiction with remedies. A UK libel
plaintiff might conceivably proceed in rem, against the tangible books,
and get the remedy you describe. But claims for money damages against
authors and publishers would require the UK court to find it has
personal jurisdiction over the defendants.
> >Once a court decides that it has personal jurisdiction and can hear
> >this case against this defendant, the court must determine what
> >rules should apply. This is governed by the doctrines of choice of
> >law (or sometimes called conflicts of law). If the German
> >manufacturer did everything right under German law, but New York law
> >would require something more, which standard should be used by the
> >New York court? Or, in a different type of case, if Microsoft is
> >entitled under United States law to incorporate a browser into its
> >operating system, is the EU required to follow that rule because the
> >operating system and browser are (hypothetically) created in the
> >United States? In the libel example, should the UK court apply its
> >own strict rules or the much more liberal standard of United States
> >libel law to the New York author? If a French citizen asks a United
> >States court to find that a United States citizen violated a French
> >copyright in France, should French law apply both to whether a
> >violation occurred and to the amount of damages?
> Conflict of law ... that book example was superb seeing as it is only
> too possible - even probable - for books to exist that are perfectly
> legal in America, but not in England. A UK court would apply English
> law, and ban import of the book. Otherwise any judgement would be a
> In the German (and MS) examples, I would say you can't apply product
> law if the product was not intended for sale in the jurisdiction. But
> anybody importing a product is liable for making sure it complies
> with local legislation.
> My example would be (legal) drugs. In the UK we have "over the
> counter" and prescription drugs. If I buy prescription drugs from,
> let's say, Holland where these drugs are "over the counter", the
> pharmacist/dealer/whatever is committing *no* offence by selling them
> to me. But as soon as I return home (if I bought them personally) or
> they are delivered to me (if I bought them by mail order), I am
> committing the offence of "possession of prescription drugs without a
> I don't know of any example where English law could be prosecuted
> against a foreign national who is abroad, unless that national has
> agreed to British jurisdiction. I do know our government has signed a
> treaty that allows foreign governments to extradite British citizens,
> for actions that are legal in Britain! to face trial in foreign
> (namely American :-( courts.
> But I think that's why I'm so dismissive of all this "IANAL because
> it's illegal to give legal advice in America" stuff. My government
> recognises the insanity of trying to enforce its laws against foreign
> citizens, and I think it insane of the Americans to try and enforce
> their laws against me. At the end of the day, what I do, I do it IN
> ENGLAND, and in England IT IS LEGAL. And in the absence of a
> contract, no British court will apply foreign law.
You are wrong. But proceed at your own risk.