This Is a Case About Copyright, Forum Selection Clauses, and Porn

Here’s a case about porn. 

I thought all of us could use a brief break from the news, and porn always raises such interesting legal issues. This recent case out of the District of Arizona, AMA Multimedia LLC v. Sagan Limited, No. CV-16-01269-PHX-DGC, deals with the application of a forum selection clause to a copyright infringement case. You can read the complaint from the case here, and a couple of earlier orders from the case here and here. (Thanks to Eric Goldman for passing along the order link!)

The plaintiff, AMA, is a producer of pornographic material who entered into a contract with Porn.com, owned and operated by defendants (nice straightforward–and I would imagine valuable–URL there). Under the contract, AMA granted a license for the use of certain content. AMA became aware that Porn.com was displaying many copyrighted works which AMA had not granted a license to and sued for copyright infringement. The defendants responded that this lawsuit is governed by the contract between them, which has a forum selection clause requiring legal actions “arising out of or relating to” the contract to take place in Barbados. 

AMA’s main argument was that the forum selection clause didn’t apply because this is a case about copyright infringement, not about any issues arising from the contract. However, the court pointed out that the contract was entirely about the proper use of copyrighted works. AMA’s copyright infringement case was really a case about the defendants using works in a way that violated the contract between them. The court would necessarily have to interpret the contract to decide if the defendants’ behavior was in fact infringing. Therefore, the forum selection clause applied.

AMA next tried to argue that the forum selection clause should be found unenforceable because it would force AMA to litigate in a jurisdiction where discovery would be difficult and costly, and was therefore designed to discourage AMA from bringing suit at all. However, the court found that AMA provided no evidence for its assertions regarding litigation in Barbados being difficult and expensive, and that the mere inconvenience of the jurisdiction was not enough to negate the forum selection clause.