A series of recent decisions suggests that federal courts increasingly are accepting evidence derived from Internet Protocol (IP) geolocation databases, which make it possible to look up the geographic location of a computer or other similarly-equipped electronic device. This development may be particularly significant in the area of copyright litigation, where alleged online infringers can resist enforcement suits on the ground that their activities are outside the court’s territorial jurisdiction.
Although geolocation databases have existed for more than a decade, federal courts have not always been willing to recognize them. In American Libraries Ass’n v. Pataki, a case decided in 1997, one prominent federal judge wrote that “[t]he Internet is wholly insensitive to geographic distinctions” and that “Internet protocols were designed to ignore rather than document geographic location.”
Courts gradually have become more open to geolocation evidence since the late 1990s, as the technology has developed. Today, the accuracy of geolocation databases varies, but users generally can enter a device’s IP address and convert it into an approximate geographic location. To try out one popular database on your computer or handheld device, click here.
What began as a slow trickle of decisions accepting geolocation evidence has become a steady stream over the past two years. Much of the action has come in online file sharing cases pitting copyright owners against anonymous “John Doe” defendants initially identified only by their computer’s IP address. While defendants often seek to dismiss these cases for lack of personal jurisdiction, courts often hold that geolocation data linking a defendant to the forum state is sufficient for the suit to move forward.
In fact, courts have begun to rely so heavily on geolocation evidence that some judges are now effectively requiring plaintiffs to use it. This is precisely what happened in Nu Image, Inc. v. Does 1-23,322, a case involving alleged copying of the hit movie The Expendables. The court denied the plaintiff’s request for jurisdictional discovery because the plaintiff had not used geolocation tools to show that all 23,322 defendants were located in or near the District of Columbia. In December 2012, the U.S. Court of Appeals for the District of Columbia Circuit agreed to review a competing ruling in AF Holdings, LLC v. Does 1-1,058, a copyright infringement case in which the trial judge decided not to order the plaintiff to use geolocation tools.
Going forward, judicial acceptance of geolocation data may well have consequences outside the copyright context. For example, in National Federation of the Blind v. Target Corp. a federal district court held that Target’s online store, target.com, was subject to a California law requiring accommodations for the disabled because Target could use geolocation tools “to make a California-specific [version of its] website.” Under this logic, other online retailers could be required to comply with a wide range of state-specific laws, though this outcome is far from certain. Nevertheless, it seems clear that, as technology continues to develop, the role of geolocation data may well become more relevant in these and other types of actions.