Creative Technology, Ltd., a Singapore Corporation v. Aztech System Pte, Ltd, a Singapore Corporation Aztech Labs, Inc., a California Corporation

TECHNOLOGY, LTD., CREATIVE Singapore corporation,

a

Plaintiff-Appellant, PTE, LTD, Sing

AZTECH SYSTEM

apore corporation; Labs, Inc., Aztech corporation, Defendants-Ap

California

pellees.

No. 93-16997. Appeals,

United States Court of

Ninth Circuit.

Argued April and Submitted 1995. July

Decided

698 Nest, Keker,

Robert A. Van Broekett & Nest, Francisco, CA, Van San Lin- and Joel zer, Roach, Oakland, Crosby, Heafey, May, & CA, plaintiff-appellant. for Coats, Bostick, Carolyn William S. F. and Anderson, Bain, Sarah W. Brown & Palo Alto, CA, defendants-appellees. for GIBSON,* HUG, Before: FLOYD R. FERGUSON, Judges. Circuit Opinion by Judge GIBSON; FLOYD R. by Judge Dissent FERGUSON. GIBSON, FLOYD R. Senior Circuit Judge. Technology appeals

Creative the district court’s non conveniens dismissal of its copyright infringement jur- action. We have appeal pursuant isdiction over this to 28 (1988), U.S.C. and we affirm.

I. BACKGROUND Appellant Technology, Ltd. (Creative) Appellee Systems Aztech Pte. (Aztech) competing Ltd. are cor- porations in the developing, business of man- GIBSON, sitting by *The HONORABLE designation. FLOYD R. Senior Judge Eighth Appeals, for the Circuit Court of motion, concluding ufacturing, distributing sound cards.1 Aztech’s principal place adequate Both Aztech’s and Creative’s offered an alternative forum and Singapore. All the sound of business is that the balance of inter- developed, designed, are and manufac- cards dismissing est factors favored the action in Singapore. Creative markets its tured adjudication favor of under the sound cards the United States appeals. through Crea-

brand name “Sound Blaster” Inc., Labs, corporation and tive a California II. DISCUSSION turn, Aztech, subsidiary. wholly owned sound cards in the United States markets its party moving Galaxy” under the brand name “Sound conveniens dismissal must demonstrate two (Aztech Labs, through Inc. Appellee Aztech (1) things: adequate the existence of an al Labs), corporation another California and (2) forum; ternative and that the balance of wholly subsidiary. owned private public relevant and interest factors favor dismissal. Contact Lumber Co. v. P.T. present protract- action arises from a The Ltd,., 1446, Moges Shipping Co. 918 F.2d copyright dispute and ed between Creative (9th Cir.1990) (citing Corp. 1449 v. Oil copyright litiga- Aztech. The first round of Gulf Gilbert, 501, 508-09, 839, 330 U.S. 67 S.Ct. erupted tion in November of 1992 when (1947)). 843, 91 L.Ed. 1055 Creative, Creative raises registered which holds twelve Unit- (1) primary appeal: three issues on whether copyrights in its Blaster ed States Sound in series, concluding the district court erred that the publicly accused Aztech of applies non conveniens doctrine to through man- the copyrighted on its material the forum (2) Act; whether of Aztech’s Sound ufacture and distribution Galaxy equivalent the the district court abused its discretion in series. Aztech filed declaratory Singapore concluding High Singapore relief action under the Court Act, ultimately forum; Singapore Copyright provide adequate re- will an alternative (3) sulting agreement in a on Decem- settlement and whether the district court abused its 7, determining ber 1992. discretion that the balance of public private relevant and factors interest Following repudiation agree- of this scope favors dismissal. The of our review is ment, Creative filed suit the United States narrow: District for the Northern District of Court California, claiming reproduc- that Aztech’s The non conveniens determination forum tion, adaptation, and distribu- is committed to the sound discretion tion of Blaster “Sound clones” violated Crea- only It when trial court. be reversed rights §§ tive’s exclusive under 17 U.S.C. 106 discretion; been a clear abuse of there has (1988) Copy- 501 and the United States the court has considered all relevant where by filing right responded Act. Aztech factors, against action balancing its of these factors is rea- where Singapore, alleging breach of the settlement sonable, its decision deserves substantial agreement seeking declaratory relief deference. again Singapore Copyright once under the Corp. Ceramic America v. Inka Maritime Creative, turn, mandatory Act. filed coun- Cir.1993) (9th 947, (citing Corp., 1 F.3d 949 Singapore alleging copyright in- terclaims 235, Reyno, Piper v. 454 U.S. Co. Aircraft fringement based on the manufacture of 266, 257, 252, 70 419 102 S.Ct. L.Ed.2d “Sound Blaster clones” (1981)). their distribution abroad. Aztech Labs has jurisdiction consented to and is Applicability the Forum Non Con- A. party ongoing Singapore action. now veniens Doctrine Aztech filed a motion to dismiss the United doctrine The non States action under the conve- forum forum statutes granted inapplicable court to certain federal niens doctrine. district computer's ability produce peripheral designed sounds. A hardware device to en- hance a jurisdiction Em such as the Jones Act1 or the Federal of United States claims (FELA) ployers’ Liability over state courts. Act2 which contain special provisions mandating venue Our conclusion is reinforced Zipfel United States district courts. v. Hal previous Court’s decision in Lockman Found. Cir.1987), (9th Co., 1477, liburton 832 F.2d Mission, Evangelical Alliance 930 F.2d denied, 1054, rt. 486 U.S. 108 S.Ct. ce (9th Cir.1991). decision, In that (1988). 100 L.Ed.2d 921 Because of plaintiff brought an action for certain non- this, a choice of law determination must be copyright infringe claims and for made before the district court dismisses an Japanese ment under both United States and action under the non conveniens doc Following law. Id. at 766. Inc., Transp., trine. Pereira v. Utah complaint by conveniens dismissal of its dismissed, Cir.1985), cert. court, plaintiff appealed district both the 1040, 106 475 U.S. 89 L.Ed.2d 362 noncopyright dismissal its claims and the (1986). argues its claim is district court’s refusal to allow it to amend its governed exclusively by the United States complaint drop claims. Id. (1988). Act, seq. 17 U.S.C. 101 et This Court affirmed both the district court’s result, aAs Creative contends that the non conveniens dismissal and its deci forum forum inapplicable non conveniens doctrine is to its deny plaintiffs sion to motion to amend 1338(a)3 § claim because 28 U.S.C. invests complaint, concluding copyright its that the the federal district with courts “exclusive” non-copyright closely and claims were too jurisdiction arising over claims under the intertwined to be severed. Id. at 772. Copyright Act. analysis Based on an complaint as a whole, claims, including we Regardless of applies, which nation’s law case, concluded that “[i]n this there is no argument Creative’s is without merit. The arguably applicable law that would end the inapplicability of the forum inquiry, forum non poten conveniens so no doctrine to the Act FELA Jones and is based tially dispositive choice of law determination venue, privilege granted by “[a] of need have been made.” Id. at 771. We legislative body right which created this of believe equal this statement of the law to be action....” R.R. Baltimore & Ohio Co. v. ly applicable to the instant ease. 44, 54, 6, 10, Kepner, 314 U.S. 62 S.Ct. 86 (1941). L.Ed. 28 As the Eleventh Circuit inaccurately The dissent our faults explained in Seguridad Transytur La failing principle decision for to take the of Line, (11th Cir.1983), 707 F.2d 1304 “[t]he national treatment into account. Both the court anything must ascertain if there is (U.C.C.) Universal Convention specific about the federal statute which indi- and the Berne Convention for the Protection to, Congress implicitly cates that spoke and (Berne) Literary and Artistic Works man rejected, application non conve- policy date a of national treatment in which forum niens doctrine to a suit thereunder.” Id. at are pro holders afforded the same 1338(a) § 1310 n. 10. 28 U.S.C. is not the foreign tection in nations that those nations type mandatory same provision venue provide their own authors. See Art. U.C.C. found in II; Berne, either the Jones Act or FELA. accurately Art. V. The dissent That merely statute points states principle out that the of national treat States district implicates courts shall have exclusive ment territoriality a rule of 1. commencing [actions "Jurisdiction in Act] § under the Jones such action.” 45 U.S.C. (1988). shall be under the court of the district in which employer the defendant resides or in which his principal U.S.C.App. office is located." original jurisdic- 3.“The district courts shall have 688(a) (1988). § any arising any tion of civil action under Act of Congress relating patents, plant variety protec- chapter may brought "Under this an action be tion, copyrights jurisdic- and trade-marks. Such States, in a district court of the United in the tion shall be exclusive of the courts states defendant, district of the residence of the or in patent, plant variety protection arose, which the cause of action or in which the 1338(a) (1988). § cases.” 28 U.S.C. doing defendant shall be business at the time of “ generally if applicable law is the satisfied the defendant is amena- ‘[t]he which process ble to the state which the service the alternative law of case, occurred, parties of the state of which the forum. Id. at n. 22. this all not that subject national in which the work was are either to or have author is a or submitted to the ” Subafilms, jurisdiction published.’ High Ltd. v. MGM- first Court of Comm., however, required, 24 F.3d Cir. More be Pathe “rare 1994) (en bane) (quoting remedy 3 David Nimmer circumstances” where offered Nimmer, Copy “clearly Melville B. Nimmer on alternative unsatisfacto- (1994)). § right ry.” Supreme 17.05 at 17-39 The Court has described such inadequate forum as one which “does not forum, however, in The law of this subject permit litigation of the matter of the cludes the non conveniens doctrine. dispute.” Id. argues principle of dissent that “the argues Creative that because the reach requires that United national treatment Singapore Copyright Act is limited to applied law be in order to occurring Singapore,4 acts within remedy infringing conduct that occurred High Court of is unable to Post at 706. We do not the United States.” grant any relief for the acts agree sweeping conclusion. Na with copyright infringement arising from Crea- territoriality are choice tional treatment tive’s distribution of “Sound Blaster clones” Subafilms, 24 principles, of law See within the United States. further 17-39, 1097; Nimmer, supra § 17.05 at 1338(a)’s argues grant that 28 U.S.C. application preclude do not of the forum jurisdiction “exclusive” to the United States merely non conveniens doctrine because brought district courts over claims under the alleges copyright foreign author violations prevents Act occurring National within our borders. applying Court of Unit- merely requires treatment this Court supplement ed States law to the grant copyright protection Creative the same Singapore remedies afforded under the enjoyed by American authors. The dissent Copyright Act. imply to that national treatment con seems immunity special from non con reject fers argument on We Creative’s both forum analysis foreign copyright plain veniens Singapore conclude that fronts. We the alleging But nationals tiffs. United States adequate Act offers an copyright law are violations of United States remedy independent of alternative United analysis. subject to non conveniens not, Even if it did States law. we forum concepts of national believe that the High We of further conclude that the Court territoriality require that for treatment and Singapore apply would free to be subject eign copyright be to the same holders to counter- Creative’s standards, more, no no less. arise. claim should the need Adequate Sing- B. Alternative Forum Adequacy Remedies under the of apore Copyright Act step The first non conve forum doctrine analysis is the determination of wheth conveniens niens forum Pip guarantee plaintiff the its choice of adequate an alterative forum exists. does not er er, law, or law will be at 102 S.Ct. at 265. The even 454 U.S. remedy Lock key applied is whether “the the alternative forum. See determination man, 768-69; Zipfel, at 832 F.2d at provided by the alternative forum is so clear 930 F.2d may ly inadequate unsatisfactory that it is no 1484-85. “A court dismiss on forum or though the for- remedy requirement at all.” Id. This is even who, 31(1) by being Singapore Copyright fringed person the owner Act not 4. Section of the copyright, and without the license of the provides: copyright, Singapore, does in or owner of the authorises the comprised Act, Subject of, in a liter- doing Singapore any act dramatic, copyright. ary, in the musical or artistic work is in- Nimmer, provide range supra § eign forum does not the same 14.05 at 14-80. We see no preventing High Sing- of remedies as are available the home barrier Court of However, apore following forum. the alternative must from a similar course of rem- potential edy for if it provide some avenue redress.” so desires. (citation Corp., F.3d at 949 omit- Ceramic Second, the of territorial limits

ted). Singapore Copyright prevent Act cannot Creative’s claim that the territorial High Singapore granting Court from Singapore Copyright Act limits of ren enjoin request permanently Creative’s Az High Singapore incapable ders the Court tech’s conduct in In copy protecting Creative’s United States deed, we are unable to conceive of a more by scope rights interests is belied protecting effective means Creative’s Unit Singapore counterclaim. Creative’s own by ed States interests than shut monetary That counterclaim seeks both ting pipeline infringing goods off the at the permanent injunctive for relief all Thus, regardless source. of whether infringement arising acts of from both the High jurisdiction Singapore Court of has development of the “Sound Blaster clones” in adjudicate copyright infringement acts of oc Singapore and their distribution abroad. We curring Singapore, outside we believe that High conclude that the Court of capable offering Court is ade capable granting Creative the relief it quate monetary injunctive remedy or under despite seeks the territorial limitations of the Singapore Copyright Act. While the Singapore Copyright Act. scope High of relief in the available Singapore may not be what Creative envi First, lack of extraterritorial reach should sioned it when filed its claim in the United prevent not Court of court, States district non conve subsuming damages the amount of in- require niens doctrine does not it to be so. alleged illegal curred Aztech Labs’ distri- Zipfel, As we observed in pirated bution of sound cards within the pro “[s]ueh [an] alternative not for[um] damages in the amount of vide all of the remedies and benefits which Singapore Copyright awarded under the Act court, might be available an American but alleged infringing occurring Azteeh’s acts provided clearly the remedies are not ‘so in Singapore. The Second Circuit did exact- inadequate unsatisfactory or that [there] is Art, Pub., ly Update that in Inc. v. Modiin ” remedy (quoting Piper, no at all.’ Id. Ltd., (2nd Cir.1988), despite 843 F.2d 67 265). U.S. at 102 S.Ct. at imposed by similar territorial limitations the Copyright case, United States Act. In that Availability Copy- United States of illegally reproduced copy- the defendants right law righted poster in the United and States then published addition, it newspapers. abroad Israeli nothing pre- we are aware of magistrate Id. at 72-73. venting High The awarded the Singapore the Court of from plaintiff damages for the applying extraterritorial acts law to Israel, copyright infringement occurring of Creative’s counterclaim the event that it appealed. id. at and the defendants scope The determines the of remedies offered magistrate’s Second Circuit affirmed the Singapore Copyright under the Act to be award, concluding copyright inadequate. adjudicate the holder inability The mere to damages infringement recover from extraterritorial of occurring acts in the United copyright infringement stemming acts of Singapore under the States Act “predicate from a act” of occur- impede applying should not that court from ring copyright within the United States. Id. at 73. “If United States law to those claims illegal reproduction poster the of the oc- should the need recog- arise. This Court has curred in the United and potential States then was nized the of American courts to Israel, exported magistrate properly to the entertain actions under the laws of damages accruing could Subafilms, include from the Is- other nations. See 24 F.3d at Id.; 10; Goldstein, newspapers.” generally raeli see generally 3 1095 n. see 2 Paul at 265-66. The district court con- and Practice S.Ct. Principles, Law Copyright: that, whole, (1989). private can enter- cluded on the both the If our courts § at 683 16.3 Sing- laws of for- pointed under the interest factors to tain actions nations, why High no reason eign appropriate agree. we see apore as the forum. We doing incapable of Singapore is of Court if need be.

same 1. Private Interest Factors simply support no Finally, there is (1) private interest factors include: argument that 28 U.S.C. for Creative’s proof; to relative ease of access sources 1338(a) High Singapore § bars the Court (2) availability compulsory process copyright law. applying United States from witnesses, unwilling for attendance of clearly grants States statute United That obtaining willing cost of attendance of wit- jurisdiction courts over district (3) nesses; possibility viewing subject states,” of the courts of the claims “exclusive (4) premises; all other factors that render foreign nations. of the courts of not exclusive expeditious inexpen- of the case trial interpret urges this Court to sive. jurisdiction grant exclusive provision as fifty of the foreign courts as well as courts Oil, (citing Zipfel, 832 F.2d at 1485 Gulf interpre support for this There is no states. 843). at U.S. tation, Even if this Court were however. The district court concluded that the interpretation strained of 28 adopt Creative’s private balance of the interest factors fa 1338(a), pre not that statute could U.S.C. weighed It the first factor vored dismissal. Singapore ap from High Court of vent of dismissal all of the rec favor because if it plying law majority of witnesses involved ords nation, foreign Sing do As a wished to so. of the the manufacture “Sound Congress acts of as the apore is not bound Blaster clones” are located fifty Supremacy Clause states are under the weighed factor The district court also the last States Constitution. Creative United parallel High favor of dismissal because precluding the point can to no barrier in the Court of was applying action ac counter further advanced than the United States Creative’s weighed against Contact factor claim should the need arise. See tion. It second (“The Lumber, Philip majority expert F.2d at 1451 n. 3 wit because the dismissal if the pine apply could COGSA courts U.S. The district nesses reside California. indicates so warrants. Evidence situation as a neutral court viewed the third factor substantially Philippine COGSA premises to view. there were no We because COGSA, suggests which similar to U.S. of discretion in the district find no abuse competent ap Philippine courts would be court’s consideration law.”). ply U.S. key in primary parties, factors. Both conduct, the wit fringing and the bulk of The of Private and Public C. Balance Singapore, in and the case nesses are located Interest Factors litigated can be there. best an ade the existence of “Given forum, must quate a district court alternative Factors 2. Public Interest private public

consider the balance public factors include: interest whether to dis interest factors to determine (1) flowing administrative difficulties of forum non conveniens.” miss (2) jury duty congestion; imposition of Oil, court Lockman, (citing 930 F.2d at 769 Gulf community no 843). people that has on the of a 508-09, 67 at 330 U.S. at While (3) in litigation; local interest relation to the normally strong presumption a there is at having controversies decided localized honoring plaintiffs choice of favor of (4) diversity home; having a the interest forum, plaintiffs afforded foreign a choice is 255-56, with the law tried in a forum familiar Piper ease less deference. U.S. (5) private of action like a tort or of mere cause governs the action: the avoidance that of contract.” Post at 708. We dis- unnecessary problems in conflicts of law. breach copyright laws do not serve agree. “Federal Id. They purpose protecting this consumers. that The district court determined property rights of designed protect are factors also favored dis public interest Nidorf, v. copyright owners.” Anderson weighed factor favor missal. It the second Cir.1994) curiam) (per parties principal both of dismissal because Peters, (citing 33 U.S. Wheaton Singapore and the are residents of (1834)). such, key inter- L.Ed. 1055 As design infringe wrongful acts of dispute Singapore with the ests this lie The district court ment occurred there. public. corporations, not the American neutrally, factors the first and fourth viewed agree with the district court’s We also reasoning that the United both States retaining this action would not determination judiciaries Singapore are overburdened having apply problem have avoided the that, eventually regardless of court which foreign scope of com- law. The Creative’s case, adjudicated application an of for this plaint necessarily implicates legality eign point at some was inevitable. occurring As acts argues that district court such, foreign likely application an law is weighed the second and third should have inevitable, adjudi- regardless of which forum against dismissal due to the United factors Nimmer, controversy. supra cates this See 3 strong protecting States’ Consequently, § 17.02 at 17-21. we conclude interests, especially where States’ district court did not abuse its dis- alleges infringements complaint occur- determining public cretion in that the inter- ring also within the United States. Creative est factors favor dismissal. argues that the fourth factor should have weighed against because its been dismissal III. CONCLUSION solely claim was based on United States 1338(a) sum, we hold that 28 U.S.C. copyright law. does not render the again, Once we find no abuse of discretion. inapplicable to the doctrine essentially dispute This is between two Copyright Act. We also conclude corporations as to which them district court did not abuse its discretion original developer disputed was the determining that the either technology. This is not a case sound card adequate is an alternative forum prod- involving piracy of American made adjudicate in which to Creative’s United substantively involving ucts or American claim, or that such, companies. in- As the United States’ fa- the balance of factors resolving controversy and the terest Consequently, vors dismissal. we AFFIRM jury community relation of the to this contro- the order of the district court. versy extremely do not are attenuated and sway against dismissal. The the balance FERGUSON, Judge, dissenting: Circuit Labs, presence wholly-owned of Aztech proper- the district court failed to Because subsidiary Singapore corporation, of a influ- ly by dismissing exercise its discretion analysis very ences our little. brought pur- non conveniens a claim law, charges I The dissent that our deci suant to United States dis- unfairly A court sion discounts what it views as the sent. district dismiss action strong public grounds upon in non a United States’ re conveniens forum 1) adequate solving copyright argues showing claim. It that that alternative fo- this 2) exists, copyright “an American is a valued benefit rum the balance of relevant weighs in granted by government public the United States interest factors benefitting gen Piper primary purpose favor of dismissal. Co. v. Aircraft 257, 252, 266, therefore, 235, good; Reyno, in eral a 454 U.S. (1981). case, In fringement not as a 70 L.Ed.2d 419 this claim must be treated unique respectively. opposition In by ignoring the its to the court erred district defendants’ motion to dismiss this action on complexity of American nature and conveniens, parts analysis of both non Creative law in its forum forum test. has evidence that Aztech Labs non conveniens submitted was $500,000 distributing allegedly worth of in- I that I am astounded when I must admit fringing per software month in the United try an Amer- that it is not convenient to read According complaint, States. to the all of in an court for copyright case American ican allegedly infringing Aztech Labs’ conduct oc- infringement place takes sole- though curred in the United Even States. by I am a ly in America. also astounded justified the district court its dismissal for place to hold the that the convenient decision by the fact that the Singapore, particularly when the trial is in design and manufacture of both Creative’s that a majority slightest not the idea have Systems’ in and Aztech software occurred recognize an in that nation would even court Singapore, acknowledged the district court copyright. American complaint Az- that “Creative’s focuses on Galaxy tech’s distribution of Sound cards Background the United States.” Ltd., Plaintiff, Technology Ltd., Defendant, Systems are Aztech Pts. Discussion Defendant, companies. Az-

both Labs, wholly tech Inc. is a owned I. subsidiary of Aztech Defendant States-based Systems Systems. Both and Aztech determining that it is not convenient to computer manufactured the designed and court, try this case its the district court compa- at issue in Both software majority and the have failed to take into wholly have owned subsidiaries nies abiding principles account one that distribute their software United States law, particularly as it American owns twelve the United States. Creative developed pursuant has to the Berne Con copyrights for the “text of principle vention: of “national treat protect computer which it seeks to software” According principle, authors ment.” copy- in this action. All twelve of Creative’s enjoy should in other countries the same published in the righted works were first protection for their works as those countries complaint entire is United States. Creative’s II; Art. accord their own authors. See UCC infringement defendants’ in the based on the generally 3 Nim Berne Conv. Art. V. See only of Creative’s twelve Unit- 17.01[B], 17-8; mer on design, copyrights through their ed States (BCIA) H.Rep. Foreign at 14. authors who manufacture, importation, and distribution copyrights must granted are American be software. Each the United States similar same as American authors. treated the separate of these acts constitutes a and inde- Moreover, commonly acknowledged “it Copy- pendent violation of the United States principle impli the national treatment 107-120, §§ right Act. See 17 U.S.C. territoriality.” Subafilms, cates a rule of Moreover, the remedies that Crea- and 501. Co., 94 Ltd. v. MGM-Pathe Communications seeks, injunction namely permanent a tive Cir.1994). also See C.D.O.S. production infringing against further (“The Nimmer, 17.05, supra, § at 17-39 software, recalling an order all in- computer copyright law of the applicable law is the fringing copies, profits from obtained occurred, not state which infringing products, are those sales of the a of which the author is that of the state by provided the United States ...”). purposes national For §§ Act. See 17 U.S.C. 502-504. analysis, principle national conveniens apart copyright cases complaint alleges that Creative treatment sets Creative’s treatment kinds of cases. The national damaged the distribution of the de- other was that, requires principle where fendants’ software the United country, infringed particular §§ in a of 17 501 and has been violation U.S.C. 706 remedy copyrights infringed by con- right pursue a were

the author has the to country. in that duct which occurred the United States protection the benefit and the must receive majority consider the have failed to principle. of the national treatment Creative adequacy Singapore of as an alternative fo- protection the United is entitled to under light principle of national treat- rum in of the Copyright Act. States They impact the of the ment. do not address Convention, requires which Berne Thus, part the first of the non forum foreign of States courts to treat owners requires conveniens test us to retain this copyrights American the same as American principle action the of national treat- because Instead, majority the use the doc- owners. precludes Singapore being an ment ade- trine of non conveniens to hold that quate Piper Aircraft, alternative forum. See foreign persons copy- when own American at at 266. The na- U.S. rights, it is not convenient for an American principle requires in- tional treatment adjudicate Contrary claims. to court to their fringement occurring in the United States be assertion, majority’s simply I the advocate adjudicated in the United States. by al- that we follow the Berne Convention However, majority conclude that the lowing foreign copyright the same owners “High Singapore capable is of Court opportunity give copy- that we to American granting They the relief it seeks.” right litigate case in the owners to their High provide conclude that Court can infringement when the injunction permanent both a and sufficient place takes in the United States. damages remedy independent to viola- case, alleges independent In this importation tions of and distribution under Copyright Act violations the United States Copyright Act. the United States The ma- by acts of distribution which occurred in the jority have reached these conclusions without United States. Our decision in this case any High Sing- resort to Court case or other put should be in the context of obvious when authority. majority apore Nor do the have analysis in this court’s cases such as Timber any Sing- basis on which to conclude that the America, lane Lumber Co. v. Bank apore High will to Court even “desire” follow Cir.1984) In and Subafilms. Indeed, remedy. only this course of Timberlane, at this court af 749 F.2d thing really Singapore copy- we know about firmed a dismissal on right law is that it is not even bound conveniens, “witnesses, par because the Convention, principles of the Berne because ties, Honduran; dastardly deeds all were Singapore signatory treaty. not a was to that clearly apply require these suits would us to single The record before us contains not Similarly, Subafilms, ...” Honduran law Singapore opinion authorizing statute or attempted this court C.D.O.S. type legal approach majority that the as- prevent by holding “international discord” fact, sumes the will In follow. only that a claim of based anything the record does not tell us about the authorization in the United States law, procedures, composition, its entirely acts which occurred out or rules. cognizable side the not United States was Thus, inadequate under the United States Act. law in- Subafilms, applicable purposes protecting Timberlane and territorial for the precluded application copyrights. nature of Creative’s United In this case, “subject dispute of the United States Act to con matter” of the copyrights duct that did not occur at all the United consists of twelve United States case, By contrast, princi protection by in this States. which are entitled American ple requires against infringement occurring national treatment that Unit courts in the applied precisely type ed States law be order United This is States. remedy infringing appro- conduct that occurred in which not ... [is] case “dismissal priate in the United States. Those works of Crea where the alternative forum does not protected by permit litigation subject tive that are matter of the

707 omitted.) (Citations 254, Here, n. Piper Aircraft, applicable 454 U.S. at the law dispute.” 265, 22, Copyright n. 22. is the United States Act at and the 102 S.Ct. alleged infringement

situs of the is the Unit finding ed States. The district court erred in II. any copyright that law other than the United ap Act would need to be determining to whether an ade- In addition plied in strong this case. Thus there is a exists, a quate alternative forum district public avoiding interest in conflict of law judge applicability court must the of forum problems by having American courts resolve by weighing the relevant controversy. Zipfel this See v. Halliburton Piper public interest factors. Co., 1477, Cir.1987); F.2d 832 1485 Su 257, Aircraft, 454 102 at 266. U.S. bafilms, addition, 94 In C.D.O.S. at 3385. as Jensen, Learjet Corp. v. 743 F.2d In Gates Learjet, in strong public Gates there is a (9th Cir.1984), 1325, this court stated: 1334 having interest American courts resolve properly analyzes If court a district controversy. this localized The district court all bal- considers relevant factors and its by failing abused its discretion to consider reasonable, ancing of factors is its these these factors. “may forum non conveniens dismissal be Moreover, the district court’s error was only a clear reversed when there has been compounded by its failure to account both for court, A abuse of discretion.” district unique significance the law in therefore, discretion it abuses its when society jurispru- American and federal court the relevant factors. fails balance complexity dence and for the enormous (Citations omitted.) law, particularly American as it pertains protection computer to the soft- enough complaint, It is clear from the Supreme ware. As the Court has stated: entirely upon copy- based American which is law, right court its the district abused The immediate effect our by dismissing discretion this action. The is to secure a fair return for “author’s” utterly public ignored district court inter- is, by labor. But aim creative the ultimate having courts of this coun- est the federal incentive, this to stimulate artistic creativi- try apply American law to resolve ty general public good. for the “The sole controversy. v. See Contact Lumber Co. pri- interest of the United States and the Ltd., Moges Shipping P.T. 918 Co. mary object conferring [copyright] (9th Cir.1990). Learjet, Gates 743 said, monopoly,” this has “lie F.2d at this court held that the district general by public benefits derived from ” by failing prop- court its abused discretion the labors of authors.... When techno- erly weigh factors in same interest change logical has rendered its literal analogous litigation: area of trademark ambiguous, terms Act must light purpose. be construed of this basic weigh

... Ari- the district court failed to Aiken, having controversy Century Corp. zona’s interest Twentieth Music 151, 156, 2040, 2044, signifi- “resolved at home.” Arizona has a 95 S.Ct. U.S. (1975) (citations omitted). in interpreting cant interest its own L.Ed.2d 84 Stated simply, laws.... Arizona also has an interest the United States courts are the most companies adjudicating rights protecting its trademark well-suited infringement preserve copyrights. abroad bestowed vitality. (daily Although Cong.Rec. state’s economic the si- H1293-05 ed. March 1987) (“While relatively discipline, tus of the trademark and trade- obscure every Philippines, name was the it touches American in their homes, schools, libraries, appears Philippine workplaces. applica- law is not Determining scope deeply A proper understanding ble.... of a law which interest, books, films, enjoy applicable how all of law and the relative affects us fact, software, computer suggests programming, that Arizona has the more television services, music, products litigation. substantial in this information caution, puter rapidly in requires great expanding arts software a mar- and the visual rapidly changing society in ket. particularly a of as ours that seeks both the free flow such majority The district court and the cite marketplace”); Pe- information and the free Evangelical Lockman Foundation v. Alli- Felcher, Subject L. Matter ter Mission, (9th Cir.1991), ance 930 F.2d 764 Jurisdiction, Practising Law Insti- authority They fail for dismiss this case. (1988) (“Federal judicial *11 as tute/Patent to understand the difference between this Congressional copyrights control over

well as Lockman, In plain- case and Lockman. system promoting is essential to our of intel- copyright tiff an American of its En- owned protec- lectual and creative freedom and glish translation of the Bible. The tion”). infringement was the translation in Asia of By dismissing this action on languages the Bible into several Asian conveniens, the district court also exclusively in In distribution almost Asia. addition, importance failed to understand the plaintiff alleged a violation of copyrightability computer in software Japanese copyright plus several non- jurisprudence. copy- American American copyright counts. The district court dis- right yet fully law has to resolve the extent ground missed all the counts on the that it software, protection computer that is due try not was convenient to them America. firmware, computer products. and other plaintiff appeal did not the dismissal of See, e.g., International Law and copyright the American claim. This Court (Paul Practice, USA, 2,§ that, at 37 E. Geller & copyright held because the American 1993) eds., (“Computer Melville B. Nimmer non-copy- claim was so intertwined with the hotly claims, at the a software stands vortex of right grant a of leave to amend in copyright contested storm United States copyright order to eliminate the claim would present”). law at We must not leave the have been futile. That not this case. It is resolution of this issue to a court. readily apparent public that the American importance computers The enormous of both language is non-existent for Asian computer-related copyrights to American Bibles distributed Asia. There was no society precludes simplistic such a and short- finding that even one Asian Bible was dis- sighted solution. infringe- tributed the United States. No place ment took in the United States. copyright may important A not be as as Lockman, not, simply there was as Su- Honor, Congressional Medal of but Aiken, preme Court found in the stimulation majority district court and the have com- creativity general public of artistic for the pletely disregarded the fact that an Ameri- good in America. copyright granted by can is a valued benefit government pri- Finally, contrary view, majority’s for the to the mary purpose benefiting general pub- given importance the enormous to American therefore, good; copyright lic society copyright protection computer private claim must not be products imported treated as mere that are distributed country, cause of action like a tort or breach of con- this the interest of the United majority importance resolving tract. The confuse the States in this matter and the rela- public good jury community law to the with the tion of the to this task importance strongly retaining law to the American favor this case the Unit- I consumer. Nowhere have stated that the ed pre- States courts. There is no evidence district court should have accounted for the sented in this case to Sing- demonstrate that importance of apore qualified this case to American consum- courts are to balance the Rather, ers. I maintain creativity protected by the district American court failed to impact privilege consider the enormous law. A United States is a general public good resulting government upon on the from its bestowed our the au- creativity. decision to leave to a court unset- thor in order reward American relating significant tled issues to the public intellectual free- law involves a copyrights dom to create American to com- interest. claiming

Because there is no basis try this case in a

it is not convenient

United States District Court and because weigh in interest factors action, retaining I

favor of dissent. The dismissing

district court erred this action non conveniens. COMPANY,

ALBANY INSURANCE

Plaintiff-Appellant, EXPRESS, engines, her

M.V. ISTRIAN

tackle, machinery, etc., appurtenances, rem, Defendant-Appellee.

No. 93-17085. Appeals,

United States Court of

Ninth Circuit.

Argued April and Submitted 1995.

Memorandum Filed June 1995. July

Decided Robb, Cook, Geoffrey Quinby Derby,

G. & Tweedt, Francisco, CA, plaintiff-ap- San for pellant. Heard, Parsons,

Keith W. Burke & New City, defendant-appellee. York

Case Details

Case Name: Creative Technology, Ltd., a Singapore Corporation v. Aztech System Pte, Ltd, a Singapore Corporation Aztech Labs, Inc., a California Corporation

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 24, 1995

Citation: 61 F.3d 696

Docket Number: 93-16997

Court Abbreviation: 9th Cir.