Dow Jones & Co., Inc. v. Juwai Ltd.

District court sustains copyright claims against Chinese publisher using CloudFront servers in United States to store and distribute infringing articles within United States, but dismisses contract claims under website terms of use as duplicative and preempted by federal copyright law. 

Plaintiff and news publisher Dow Jones & Company sued Chinese publisher Juwai Ltd. for copyright infringement under U.S. and Hong Kong law, violation of the Digital Millennium Copyright Act (DMCA) and breach of contract, claiming that Juwai illegally reproduced Dow Jones’ articles on Juwai’s own Chinese-language website. Juwai moved for dismissal, which the New York federal district court granted as to the Hong Kong law and breach of contract claims but denied with respect to Dow Jones’ causes of action under the U.S. Copyright Act and DMCA. 

The complaint alleged that Juwai had reproduced without permission over 100 articles from the Dow Jones news publications The Wall Street Journal, MarketWatch and Mansion Global on its own website, Juwai.com, which markets global real estate listings and news to a Chinese-speaking audience. Dow Jones sued for copyright infringement of a subset of those articles, which Dow Jones had timely registered with the U.S. Copyright Office. For all of the articles, whether registered or not, Dow Jones claimed that Juwai breached the website terms of use in obtaining them, violated the DMCA by stripping and replacing the original copyright management information in the content, and infringed Dow Jones’ copyrights under the law governing Hong Kong. 

Juwai moved to dismiss Dow Jones’ DMCA and copyright infringement claims under U.S. law primarily on territorial grounds, arguing that it operated beyond American law’s territorial reach as a Chinese company publishing a Chinese-language website. The court analyzed the foreign infringement in the context of additional “plus factors” going beyond the online availability of a website in the United States, which include “the direction of copyrighted material into the United States,” “when foreign acts are intended to, and do, have an effect within the United States,” and “the uploading of copyrighted materials to servers located in the United States.” The court noted that Juwai.com is served to users by the CloudFront content delivery network, which stores copies of a website’s content on “edge servers” located around the world and generally delivers data to users from their closest edge server. The court concluded that the Juwai website’s use of CloudFront servers in the U.S. to store and distribute copies of the infringed articles in the U.S. adequately supported a claim of direct copyright infringement to survive a motion to dismiss. 

Dow Jones’ breach of contract claims were based on the fact that it requires users of its websites to accept terms of service that prohibit the reproduction or distribution of the website’s content without the owner’s permission. Juwai moved to dismiss these claims on the grounds that they were duplicative of the copyright infringement claims and therefore preempted by the U.S. Copyright Act. The court agreed with the preemption argument and dismissed the contract cause of action, finding that the terms of use were being used to protect the same rights as copyright law, namely the rights to reproduce and distribute works, and were “violated by the same act of reproduction.”

Finally, Juwai moved to dismiss Dow Jones’ infringement claims under Hong Kong copyright law, on the grounds of forum non conveniens. Although the court acknowledged that the doctrine is traditionally applied to dismissal of an entire action rather than only some of the claims, it found application appropriate where Dow Jones had only added the Hong Kong claims in the alternative should the court decide that the territorial jurisdiction of U.S. copyright law was insufficient to reach Juwai’s foreign infringement. The court reasoned that the relevant witnesses and evidence would likely be located in Hong Kong for injuries sustained there and that the courts in Hong Kong would be better positioned to interpret and apply Hong Kong law, as well as compel participation if necessary. The court concluded that Hong Kong would be a significantly preferable forum and dismissed Dow Jones’ foreign law claims on that basis. 

Summary prepared by Melanie Howard and Jordan Meddy