The Enforcement of Foreign Copyright Judgments in U.S. Courts and the First Amendment

“This Note aims to use the Viewfinder decision as a starting point to consider more broadly the enforcement of foreign copyright judgments. It will caution against the temptation to summarily refuse to enforce foreign copyright judgment as inherently incompatible with the First Amendment. This Note will argue that the Second Circuit was correct in evaluating the foreign copyright judgment in conjunction with American copyright law, rather than solely through the lens of the First Amendment. Foreign copyright decisions, governed under their own intellectual property legal frameworks, should not go through the same analysis as libel and hate speech decisions, which fall at the center of First Amendment protections. Domestic copyright laws already include built-in protections, such as the doctrine of fair use, to ensure that First Amendment values are preserved. Courts should thus evaluate foreign copyright judgments by comparing the protections provided by the foreign countries’ intellectual property frameworks to domestic intellectual property laws.

“Current scholarship on the enforcement of foreign copyright decisions, including the Viewfinder decision, is limited. Some scholars have written on the enforcement of foreign judgments, looking more broadly at First Amendment implications, but none have focused on copyright cases in the aftermath of Viewfinder. This lacuna is unfortunate, because it suggests that foreign copyright judgments do not merit their own analysis, but rather fall within the same category as other foreign judgments implicating the First Amendment. Indeed, scholars writing on the subject of foreign judgments have treated the Viewfinder case as just another example of domestic courts addressing the First Amendment’s effect on foreign judgments. As this Note suggests, this analysis is flawed, because several reasons, including the increasing harmonization of intellectual property laws across countries, militate in favor of the enforcement of foreign copyright judgments that do not apply to the other foreign cases implicating the First Amendment which have come before courts. Furthermore, Viewfinder highlights the complexity of applying the First Amendment in the age of the internet, where speech is no longer territorially bound and content emanating from one country often reaches a global audience.”

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