Thanks.

Ralph, your points are very good; thank you for your comments.

On enforceability, it depends on whether the defendant has any assets in the United States. But of course many defendants will simply abide by the U.S. court decision because they plan to do more business in the United States in the future and don’t want to face the potential negative consequences of noncompliance.

The chilling effects are not to be underestimated. Many foreign defendants might give up fighting a case as soon as a decision on jurisdiction comes down and simply stop offering their goods and services in the United States in order to avoid incurring any additional litigation costs.

Note that the courts have not said that website operators must use geoblocking to avoid personal jurisdiction in the United States. The lack of geoblocking was only one of several facts that the courts have considered. At least for the purposes of determining whether the courts have personal jurisdiction over a defendant, it was not important whether geoblocking would be perfect, effective, or good, but it was important that the defendant did not even try to implement geoblocking even as the defendant was determining where its users were connecting from. So geoblocking is not necessary if a website operator takes other measures, such as having a disclaimer on its website and/or not offering goods and services to customers in the United States.

I don’t know why Disqus chomped it. Here is the full comment: “I am not a lawyer. Please explain to me how, exactly, this ruling is enforceable against a company with no physical presence (and barely any other kind of presence) in the USA. Is it assumed that a German court will be willing to enforce it? (What I’ve read about such things indicates that getting a foreign court to enforce a judgment from an American court tends to be difficult.) Will they order every ISP in the USA to block Scrutinizer? Will they order every credit card issuer in the USA to reject purchases from Scrutinizer? Or what? Forgive me if my questions are naive, but this ruling strikes me as Alice-in-Wonderland-ish.

To the extent it isn’t Alice-in-Wonderland-ish, it’s more than disturbing. Consider the obvious implications. For example, consider a software company incorporated in New Zealand, which has practically abolished software patents, but that has at least one customer in the USA, which is infested with patent trolls. By the logic of this ruling, said company is vulnerable to attack by said trolls. Even if, when attacked, the company blocks all traffic it suspects of being from the USA, (1) a troll might try to get a judgment pursuant to the period when traffic from the USA wasn’t blocked, and (2) whatever the judges of the First Circuit may imagine, geolocation is far from perfect, so some traffic from the USA may well leak through, and if a troll can demonstrate as much, it can try to get a judgment pursuant to this continuing “violation”. Even if the claims of the trolls were without merit, as they usually are, the possibility of having to settle such attacks, at a cost of quite possibly tens of thousands of dollars each, or to fend them off, at a cost of quite possibly hundreds of thousands of dollars each, is so threatening that it would seem the company has little choice but to block all traffic it suspects of being from the USA starting the day it launches, to post prominent notices stating that it will not knowingly do business with Americans, and, even after all that, to hope for the best.

Now multiply that by 193, the number of countries in the United Nations, or so. This kind of thing has the potential to place web site operators under a genuinely crushing burden. If I’m potentially liable for breaking the laws of every country on Earth merely because some of their citizens access my web site, then I’m living on borrowed time unless, like Facebook or Google, I can afford to spend millions of dollars defending myself whenever and wherever I’m attacked. This is madness.”

Please explain how this decision is enforceable against a company with no physical presence in the USA. As someone with no experience of such things, I find this puzzling.

To the extent it isn’t Alice-in-Wonderland-ish, it’s more than disturbing. Consider the obvious implications. For example, consider a software company incorporated in New Zealand, which has practically abolished software patents, but that has at least one customer in the USA, which is infested with patent trolls. By the logic of this ruling, said company is vulnerable to attack by said trolls. Even if, when attacked, the company blocks all traffic it suspects of being from the USA, (1) a troll might try to get a judgment pursuant to the period when traffic from the USA wasn’t blocked, and (2) whatever the judges of the First Circuit may imagine, geolocation is far from perfect, so some traffic from the USA may well leak through, and if a troll can demonstrate as much, it can try to get a judgment pursuant to this continuing “violation”. Even if the claims of the trolls were without merit, as they usually are, the possibility of having to settle such attacks, at a cost of quite possibly tens of thousands of dollars each, or to fend them off, at a cost of quite possibly hundreds of thousands of dollars each, is so threatening that it would seem the company has little choice but to block all traffic it suspects of being from the USA starting the day it launches, to post prominent notices stating that it will not knowingly do business with Americans, and, even after all that, to hope for the best.

Now multiply that by 193, the number of countries in the United Nations, or so. This kind of thing has the potential to place web site operators under a genuinely crushing burden. If I’m potentially liable for breaking the laws of every country on Earth merely because some of their citizens access my web site, then I’m living on borrowed time unless, like Facebook or Google, I can afford to spend millions of dollars defending myself whenever and wherever I’m attacked. This is madness.