Burris & Schoenberg, LLP

9th Circuit Court of Appeal in the Yahoo! v. La Ligue contre le Racisme et l'Antisemitisme case.
I have placed all the opinions and pleadings at http://www.bslaw.net/licra/
The oral argument audio file can be heard if you have a Windows Media Player by downloading the 9mb file at http://www.bslaw.net/licra/01-17424.wma.

Yahoo Case Tests Reach of Internet Law
9th Circuit revisits dispute over Nazi memorabilia auctions
Jeff Chorney
The Recorder
03-25-2005

If Yahoo Inc. prevails at the 9th U.S. Circuit Court of Appeals, it'll be a
squeaker.
On Thursday, the Sunnyvale, Calif.-based Internet portal company asked an en
banc panel to protect it from a French court's judgment that eventually
could mean millions of dollars in fines. Two anti-racism groups obtained the
judgment in 2000 because Yahoo users were selling and discussing Nazi
memorabilia, which is against French law.
Although the French groups have not tried to collect on the judgment -- and
say they won't as long as Yahoo abides by French law -- Yahoo went to U.S.
court to obtain pre-emptive relief.
Yahoo wants U.S. federal courts to assert personal jurisdiction over the
French groups to prevent them from ever trying to collect the fines.
Robert Vanderet, a partner in O'Melveny & Myers' Los Angeles office, told
the judges that the potential liability of the fines has cast a pall over
the popular company's future business.
The French groups "want to have a Damoclean sword," Vanderet said, referring
to the Greek legend of the sword hanging by a hair over Damocles' head. "The
danger is not that it falls, but that it hangs."
But E. Randol Schoenberg, of Los Angeles' Burris & Schoenberg, said Yahoo
started the trouble itself by directing its business into France.
"The First Amendment doesn't forbid foreign countries from making judgments
on American companies," Schoenberg said.
It was tough to read the court Thursday. Although the questioning was
lively, judges repeatedly asked whether there was even an actual controversy
requiring their attention. Several implied that it would be better to wait
for the French groups to try to collect.
"Where's the beef?" asked Judge Ronald Gould. "Why are we here?"
Yahoo had won before U.S. District Judge Jeremy Fogel of San Jose, Calif.,
but his decision was reversed by a three-judge 9th Circuit panel.
The grant of a rehearing petition is usually good news to a litigant in
Yahoo's position. But luck struck back in the selection of en banc
panelists.
The two judges who formed the majority in the three-judge ruling, Senior
Judges Warren Ferguson and A. Wallace Tashima, also made it onto the larger
panel.
And Ferguson, for one, made clear that he hasn't changed his view of the
Internet company.
"Why does Yahoo desire to make a profit over anti-Semitism? Why do you
continue to advertise if you know that they're bad?" Ferguson demanded near
the end of Vanderet's turn at the podium.
Ferguson's comments appeared to surprise many of his colleagues, as well as
members of the audience.
Other judges sounded sympathetic to Yahoo. Regarding the duty to obey French
law, Judge Carlos Bea asked, "Does that mean Yahoo has to put a V-chip into
every French person's computer?"
The case isn't just a fight over Yahoo's financial liability. It's also
charting unknown First Amendment territory.
Free speech and Internet advocates say it's dangerous to ask Internet
service providers to police the activities of their members. They're afraid
that companies won't want to put themselves on the line to protect free
speech.
"This is a very important issue. Without being able to turn to the courts,
all of the incentives are to cave in rather than to risk allowing free
speech on the Internet," said Ann Brick, staff attorney at the American
Civil Liberties Union in San Francisco.
The ACLU joined with other free-speech advocates to file an amicus curiae
brief in the case.
"As much as all of us might dislike the underlying speech at issue here, we
have to remember that we must protect the speech we hate in order to protect
the speech we love," Brick said.
The case is Yahoo v. La Ligue Contre Le Racisme et L'Antisemitisme,
01-17424.

ABC News
Court to Hear Web Speech Censorship Case
Yahoo Asks Appeals Court to Decide if U.S.-Based Internet Speech Subject to
Overseas Censorship

By DAVID KRAVETS Associated Press Writer

The Associated Press
SAN FRANCISCO Mar 24, 2005 ? Lawyers for Yahoo Inc. asked a federal appeals
court Thursday for legal protection for U.S.-based Internet portals whose
content is protected by the First Amendment in the United States, but
illegal in foreign countries.
Some of the judges acknowledged the need for a shield for American companies
in such situations, but suggested it was premature in the case of Yahoo,
which is challenging a fine levied by a Paris court four years ago for
allowing the site's French users to buy and sell Nazi memorabilia, in
violation of French law.
Yahoo asked the 11-judge panel of the San Francisco-based 9th U.S. Circuit
Court of Appeals on Thursday to prevent the two French human rights groups
that sued from collecting the fine now at about $15 million and growing by
as much as $15,000 per day.

But during 70 minutes of arguments, some judges noted that the French groups
haven't tried to collect.
"Where's the beef? Why are we here?" asked Judge Ronald Gould.
Yahoo attorney Robert Vanderet said the human rights groups might try to
collect, and that Yahoo isn't the only Internet portal that needs to know
whether U.S. courts would shield American companies from being liable abroad
for lawfully protected speech originating in America.
"Yahoo needs assurances that that order is not enforceable in the United
States," Vanderet told the panel.
Yahoo's French subsidiary, yahoo.fr, complies with France's law, but a
French judge ordered Sunnyvale-based Yahoo.com to strip Nazi paraphernalia
from the portal's most popular site, yahoo.com. Yahoo did not appeal the
French order, and instead sought protection in U.S. courts.
A San Jose federal judge in 2002 ruled Yahoo, as an American company, was
not liable, and the human rights groups appealed. A three-judge 9th Circuit
panel overturned the judge, saying he ruled prematurely, since France's
Union of Jewish Students and the International Anti-Racism and Anti-Semitism
League haven't acted on the French judgment. Yahoo then sought Thursday's
rehearing before an 11-judge panel.

Judge Raymond Fisher speculated that Yahoo's case was premature, but
acknowledged the implications for free speech. "They're seeking a remedy
that is going to have a major impact in the United States," Fisher said.
Yahoo says its international subsidiaries comply with local laws, and said
it's technologically impossible to censor its U.S. site for users in France.

Legal experts said if Yahoo can clarify its position in the United States,
other U.S-based Internet service providers also will understand their
liabilities.
"Who has a right to exercise legal jurisdiction over content that's on the
Web?" asked Jeffrey Pryce, an international lawyer from Washington, D.C.
Suppose it was Saudi Arabia or Afghanistan, he asked. "It could get kind of
frightening."
The human rights groups' attorney, E. Randol Schoenberg, said Yahoo has
dramatically limited the Nazi material on its American site, and that his
clients won't try to collect unless Yahoo reverts "to their old ways."
The appellate court can rule on the case at any time.

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not be published, broadcast, rewritten, or redistributed.

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Court Ponders Yahoo's Nazi-Item Sales
Thu Mar 24, 2005 08:35 PM ET

SAN FRANCISCO (Reuters) - U.S. judges considered on Thursday whether to
intervene in a nearly five-year-old battle over the sale of Nazi
paraphernalia on Yahoo in France, a case that could have broad implications
on how Internet companies do business internationally.

Yahoo Inc. (YHOO.O: Quote, Profile, Research) argued before the 9th U.S.
Circuit Court of Appeals that it deserves protection in the United States
from a French court's order banning it from selling Nazi-related items in
France, although a three-judge panel of the appeals court had previously
ruled against the Internet firm. "Yahoo needs the assurance that this
(French court's) order is not enforceable in the U.S.," Yahoo attorney
Robert Vanderet, told the court's 11 judges on Thursday.

In May 2000, a French court granted the requests of two French human rights
groups and ordered Yahoo to bar access to Nazi items and to remove related
messages, images and literature from its site.

Yahoo's French subsidiary, Yahoo France, now removes Nazi material from its
site, in accordance with French law barring the sale of Nazi-related
memorabilia. Yahoo could be subject to heavy fines for failing to comply
with French law.

However, Yahoo's U.S. Web site, Yahoo.com, hosts auctions of such items as
stamps and coins from Nazi Germany, and hosts Nazi- and anti-Semitic themed
discussion groups.

Yahoo sued the French rights groups in U.S. court in December 2000, asking
it to declare the French court's decision "not recognizable or enforceable
in the United States." The Internet media company also said that the French
court's order violated its First Amendment rights.

Yahoo won that round, but a three-judge panel of the appeals court
overturned the decision in August 2004. The panel ruled that U.S. courts
cannot supersede orders from a foreign court when the foreign litigants have
not brought the battle into the U.S. legal system.

In February, the full appeals court agreed to reconsider the case.

The judges focused their questions on Thursday on whether Yahoo faced an
imminent risk of fines or other penalties.

"We do face a massive fine," Vanderet said. He added that while Yahoo's
French site complies with local law regarding Nazi memorabilia, Yahoo's U.S.
site does not.

But Randol Schoenberg, representing the French rights groups, said they had
"no intention to pursue a monetary judgment in the U.S."

Yahoo's free-speech appeal gets hearing
Published: March 24, 2005, 7:31 AM PST

By Dawn Kawamoto
Staff Writer, CNET News.com

Yahoo is set to go before a U.S. appeals court in a case to determine
whether a foreign court can censor speech that originated in the United
States.

Yahoo, which is presenting the case Thursday to the U.S. Court of Appeals
for the 9th Circuit, has asked the court to find that orders issued in a
French court are unenforceable and that the defendants cannot collect their
multimillion-dollar claims.

Nearly five years ago, antihate groups in France sued Yahoo over Nazi
paraphernalia posted for auction on its U.S. Web site. A French court
ordered Yahoo to block all sales or display of such items that could be seen
by citizens of France, based on that country's laws prohibiting racism.

Yahoo, however, filed a lawsuit in a U.S. District Court in San Jose,
Calif., claiming the French court had no jurisdiction over content hosted by
its U.S.-based servers. That court agreed with Yahoo, ruling that the French
court could not enforce its order in the United States. The court went
further, claiming that the case would also violate the Web portal's First
Amendment rights.

But when the French antihate groups contested the decision in a U.S. appeals
court, that court ruled in their favor because of a procedural issue. The
ruling said that the district court made its decision before the groups had
actually asked any U.S. court to enforce the French judgment.

Yahoo, which resubmitted the appeal to the 9th Circuit appeals court, will
have its case heard again with the full panel of 11 judges.

Court Hearing in Yahoo Nazi Auctions
SAN FRANCISCO ? A case involving Internet company Yahoo and a multimillion
dollar fine levied by a French court will be heard in a San Francisco court
today.

Yahoo is challenging the fine a Paris court levied four years ago on the
company for allowing its French users to buy and sell Nazi memorabilia.

Since the fine is growing by as much as 15-thousand dollars a day, the
judgment is now nearly 15 million dollars.

Sunnyvale-based Yahoo is asking the Ninth U.S. Circuit Court of Appeals to
declare the judgment can't be collected in the U.S.

Legal experts say besides determining Yahoo's possible liability, the
court's decision will decide if U.S. Internet companies are liable for
damages in foreign courts for speech originating from the United States.

Copyright � 2005 KABC-TV and the Associated Press. All rights reserved. This
material may not be published, broadcast, rewritten, or redistributed.

� Reuters 2005. All Rights Reserved.
Posted on Thu, Mar. 24, 2005 Is U.S.-based Internet speech subject to
censorship abroad?
DAVID KRAVETS
Associated Press
SAN FRANCISCO - A federal appeals court was to hear arguments on whether
U.S.-based Internet service providers are liable for damages in foreign
courts for speech originating from the United States.

That First Amendment question was before the San Francisco-based 9th U.S.
Circuit Court of Appeals on Thursday. The case was brought by Internet
portal Yahoo Inc., which is challenging a growing multi-million-dollar fine
a Paris court levied four years ago for continuing to allow the site's
French users to buy and sell Nazi memorabilia.

Yahoo wants the appeals court to declare that the judgment, now at about $15
million and growing by as much as $15,000 per day, cannot be collected in
the United States - the only venue where the two French human rights groups
who sued Yahoo can claim the judgment.

Yahoo's French subsidiary, yahoo.fr, complies with France's law, but a
French judge ordered Yahoo.com of Sunnyvale, Calif., to strip Nazi
paraphernalia from the portal's most popular site. Yahoo did not appeal the
French order, and instead went to a U.S. District Court in San Jose where
the First Amendment battle began.

A San Jose federal judge in 2002 ruled Yahoo, as an American company, was
not liable for the judgment. The human rights groups appealed to the 9th
Circuit, where a three-judge panel of the San Francisco court overturned the
San Jose judge's decision.

The appeals court said the San Jose judge ruled prematurely because the
human rights groups had not sought to collect the judgment. France's Union
of Jewish Students and the International Anti-Racism and Anti-Semitism
League haven't acted on the French judgment, so the appeals court said the
San Jose judge unlawfully intervened and decided the case.

Yahoo appealed to the 9th Circuit again, asking it to rehear the case with
11 judges. Without comment, the court agreed last month.

"We need to be able to determine whether or not we have an obligation to
comply," Yahoo attorney Mary Wirth said. "Because if we can't get early word
from the court about our compliance obligation, we're in a Catch 22 between
choosing censorship or letting fines accrue."

Yahoo says its more than two dozen subsidiaries comply with the law in each
nation where they are based. Demands that its U.S.-based portal abide by
French law violate the First Amendment, and it's technologically impossible
to censor its U.S. site for users in France, Wirth said.

Legal experts said if Yahoo can clarify its position in the United States,
other U.S-based Internet service providers will also understand their
liabilities.

"Who has a right to exercise legal jurisdiction over content that's on the
Web?" asked Jeffrey Pryce, an international lawyer in Washington, D.C.
"Suppose it was Saudi Arabia, Afghanistan or Saudi Arabia. It could get kind
of frightening."

The human rights groups' attorney, E. Randol Schoenberg, agreed with the 9th
Circuit's original ruling that the case was prematurely decided by a San
Jose federal judge.

Schoenberg said Yahoo has dramatically limited the Nazi material that can be
auctioned on its American site, and that his clients have no intention, at
least not yet, of going to a U.S. federal court to collect the ever-growing
judgment.

"From Yahoo's perspective, they want to know in advance whether they are
going to be subject to this judgment. They want the assurance it's not
enforceable in the U.S. because the threat that it could be enforced in the
U.S. is chilling their free speech," Schoenberg said.

The case is Yahoo v. La Ligue Contre Le, 01-17424.

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Editors: David Kravets has been covering state and federal courts for more
than a decade.