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California vs. Kazaa Can a California Court Have Jurisdiction over an Australian Software Company? Andrew W. Hill 2003.01.22 I'm sure by now everybody has noticed that the state of California has declared Australia part of their jurisdiction (see I Still Call Australia Home). For those who missed it, the Australia-based publisher of Kazaa, an Internet file-sharing program, is being sued in California. They appealed to the California courts on the basis that Australia was not part of California the last time they checked - but were denied. The state of California's stance on the issue is that since the software is downloaded and used by people in California, the publishers are subject to California law.

I seem to recall an incident a while back when Google was blocked in China. There was a huge hullabaloo, with everyone screaming bloody murder. Eventually, China allowed Google to make a second version for China's use. China's position was that there was some material on the Internet that was illegal in China. China has no law upholding free speech, and it was ruled that any site linking to objectionable material was potentially illegal as well. As such, they blocked all such sites. That's all.

They didn't send a letter to Google demanding they show up in a Chinese court for a potentially capital offense.

Let's go out on a limb here and say that I go to Amsterdam. From what I understand, I'm legally allowed to purchase material involving naked girls as young as fourteen years of age, as long as they are not involved in any lascivious actions. Suppose I bring them back to the USA. They stop me at customs and find the magazines. Which of these happens:

• They arrest me under child pornography laws and send me to jail.
• They let me keep the magazines, release me, and sue the publisher in Amsterdam.

I fail to see the difference between this and the Kazaa case.

I'm sure many people would argue that I am physically bringing child pornography into the country, instead of having the company mailing it to me in the USA. My take here is that Kazaa is not "sent" to users in the USA any more than the magazine was sent to the individual.

The user of Kazaa has sent their electronic identity to Australia and downloaded some software. The software itself is not illegal. In fact, Microsoft has embraced it as a convenient way to distribute Windows Media files. The question is whether Kazaa can be held liable because some users choose to use their software to illegally swap files.

I'm certain that if some country other than the USA tried to enforce their laws upon other sovereign nations there would be an uproar. I'm sure this wonderful country would not tolerate somebody other than its own government impinging on its civil rights.

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Aquatic Mac begun December 28, 2001. All Tech Reflections articles ©2001-2003 by Andrew W. Hill. Low End Mac is an independent publication and has not been authorized, sponsored, or otherwise approved by Apple Inc. Opinions expressed are those of their authors and may not reflect the opinion of Cobweb Publishing. Advice is presented in good faith, but what works for one may not work for all.
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