Over ©s: Dilemmas in Establishing Jurisdiction Over Foreign Sovereigns in US Courts for Intellectual Property Infringement

Katherine Dutcher · 18 Vand. J. Ent. & Tech. 3

Abstract

When a foreign state infringes a US-held intellectual property right abroad, it is unclear to what extent the Foreign Sovereign Immunities Act of 1976 (FSIA) bars suit in US courts. The FSIA’s already complex commercial activity exception, which governs such actions, was further obfuscated by the Supreme Court’s decision in Republic of Argentina v. Weltover, which held that “substantiality” and “foreseeability” could not be used to determine whether a foreign sovereign’s conduct had a “direct effect” in the United States, thus warranting jurisdiction in a US court. In the context of IP infringement, where harms may be abstract and unquantifiable, this restriction left courts with little guidance for determining whether the FSIA permits jurisdiction over such claims. This Note analyzes the contradictory reasoning of two courts in their application of the Weltover “direct effect” test to IP infringement claims, noting that where applied broadly the test permits an almost per se grant of jurisdiction over a foreign state, but where construed narrowly, the Weltover test seems to preclude suits against foreign sovereigns for IP infringement altogether. This Note proposes a four-step test for assessing intellectual property violations under the FSIA that seeks to enforce the FSIA’s strong presumption of immunity while also accounting for the unique harms that result from IP infringement.