The opinion of the court was delivered by: Jeremy Fogel, United States District Judge.
ORDER GRANTING MOTION FOR
Plaintiff moves for summary judgment. Defendants oppose the motion. The
Court has read the moving and responding papers and has considered the
oral arguments of counsel presented on September 24, 2001. For the
reasons set forth below, the motion will be granted.
Defendants La Ligue Contre Le Racisme Et l'Antisemitisme ("LICRA") and
L'Union Des Etudiants Juifs De France, citizens of France, are non-profit
organizations dedicated to eliminating anti-Semitism. Plaintiff Yahoo!,
Inc. ("Yahoo!") is a corporation organized under the laws of Delaware
with its principal place of business in Santa Clara, California. Yahoo!
is an Internet*fn1 service provider that operates various Internet
websites and services that any computer user can access at the Uniform
Resource Locator ("URL") http://www.yahoo.com. Yahoo! Services ending in
the suffix, ".com," without an associated country code as a prefix or
extension (collectively, "Yahoo!'s U.S. Services") use the English
language and target users who are Residents of, utilize servers based in
and operate under the laws of the United States. Yahoo! subsidiary
corporations operate regional Yahoo! sites and services in twenty other
nations, including, for example, Yahoo! France, Yahoo! India, and Yahoo!
Spain. Each of these regional web sites contains the host nation's unique
two-letter code as either a prefix or a suffix in its URL (e.g., Yahoo!
France is found at http://www.yahoo.fr and Yahoo! Korea at
http://www.yahoo.kr). Yahoo!'s regional sites use the local region's
primary language, target the local citizenry, and operate under local
Yahoo! provides a variety of means by which people from all over the
world can communicate and interact with one another
over the Internet.
Examples include an Internet search engine, e-mail, an automated auction
site, personal web page hostings, shopping services, chat rooms, and a
listing of clubs that individuals can create or join. Any computer user
with Internet access is able to post materials on many of these Yahoo!
sites, which in turn are instantly accessible by anyone who logs on to
Yahoo!'s Internet sites. As relevant here, Yahoo!'s auction site allows
anyone to post an item for sale and solicit bids from any computer user
from around the globe. Yahoo! records when a posting is made and after
the requisite time period lapses sends an e-mail notification to the
highest bidder and seller with their respective contact information.
Yahoo! is never a party to a transaction, and the buyer and seller are
responsible for arranging privately for payment and shipment of goods.
Yahoo! monitors the transaction through limited regulation by prohibiting
particular items from being sold (such as stolen goods, body parts,
prescription and illegal drugs, weapons, and goods violating U.S.
copyright laws or the Iranian and Cuban embargos) and by providing a
rating system through which buyers and sellers have their transactional
behavior evaluated for the benefit of future consumers. Yahoo! informs
auction sellers that they must comply with Yahoo!'s policies and may not
offer items to buyers in jurisdictions in which the sale of such item
violates the jurisdiction's applicable laws. Yahoo! does not actively
regulate the content of each posting, and individuals are able to post,
and have in fact posted, highly offensive matter, including Nazi-related
propaganda and Third Reich memorabilia, on Yahoo!'s auction sites.
On or about April 5, 2000, LICRA sent a "cease and desist" letter to
Yahoo!'s Santa Clara headquarters informing Yahoo! that the sale of Nazi
and Third Reich related goods through its auction services violates
French law. LICRA threatened to take legal action unless Yahoo! took
steps to prevent such sales within eight days. Defendants subsequently
utilized the United States Marshal's Office to serve Yahoo! with process
in California and filed a civil complaint against Yahoo! in the Tribunal
de Grande Instance de Paris (the "French Court").
The French Court found that approximately 1, 000 Nazi and Third Reich
related objects, including Adolf Hitler's Mein Kampf, The Protocol of the
Elders of Zion (an infamous anti-Semitic report produced by the Czarist
secret police in the early 1900's), and purported "evidence" that the gas
chambers of the Holocaust did not exist were being offered for sale on
Yahoo.com's auction site. Because any French citizen is able to access
these materials on Yahoo.com directly or through a link on Yahoo.fr, the
French Court concluded that the Yahoo.com auction site violates Section
R645-1 of the French Criminal Code, which prohibits exhibition of Nazi
propaganda and artifacts for sale.*fn2 On May 20, 2000, the French Court
entered an order requiring Yahoo! to (1) eliminate French citizens'
access to any material on the Yahoo.com auction site that offers for sale
any Nazi objects, relics, insignia, emblems, and flags; (2) eliminate
French citizens' access to web pages on Yahoo.com displaying text,
extracts, or quotations from Mein Kampf and Protocol of the Elders of
Zion; (3) post a warning to French citizens on Yahoo.fr that any search
through Yahoo.com may lead to sites containing material prohibited by
Section R645-1 of the French Criminal Code, and that such viewing of the
prohibited material may result in legal action against the Internet user;
(4) remove from all browser directories accessible in the
index headings entitled "negationists" and from all hypertext links the
equation of "negationists" under the heading "Holocaust." The order
subjects Yahoo! to a penalty of 100, 000 Euros for each day that it fails
to comply with the order. The order concludes:
We order the Company YAHOO! Inc. to take all
necessary measures to dissuade and render impossible
any access via Yahoo.com to the Nazi artifact
auction service and to any other site or service
that may be construed as constituting an apology for
Nazism or a contesting of Nazi crimes.
High Court of Paris, May 22, 2000, Interim Court Order No. 00/05308,
00/05309 (translation attested accurate by Isabelle Camus, February 16,
2001). The French Court set a return date in July 2000 for Yahoo! to
demonstrate its compliance with the order.
Yahoo! asked the French Court to reconsider the terms of the order,
claiming that although it easily could post the required warning on
Yahoo.fr, compliance with the order's requirements with respect to
Yahoo.com was technologically impossible. The French Court sought expert
opinion on the matter and on November 20, 2000 "reaffirmed" its order of
May 22. The French Court ordered Yahoo! to comply with the May 22 order
within three (3) months or face a penalty of 100,000 Francs
(approximately U.S. $13,300) for each day of non-compliance. The French
Court also provided that penalties assessed against Yahoo! Inc. may not
be collected from Yahoo! France. Defendants again utilized the United
States Marshal's Office to serve Yahoo! in California with the French
Yahoo! subsequently posted the required warning and prohibited postings
in violation of Section R645-1 of the French Criminal Code from appearing
on Yahoo.fr. Yahoo! also amended the auction policy of Yahoo.com to
prohibit individuals from auctioning:
Any item that promotes, glorifies, or is directly
associated with groups or individuals known
principally for hateful or violent positions or
acts, such as Nazis or the Ku Klux Klan. Official
government-issue stamps and coins are not prohibited
under this policy. Expressive media, such as books
and films, may be subject to more permissive
standards as determined by Yahoo! in its sole
Yahoo Auction Guidelines (visited Oct. 23, 2001)
Notwithstanding these actions, the Yahoo.com auction site still offers
certain items for sale (such as stamps, coins, and a copy of Mein Kampf)
which appear to violate the French Order.*fn3 While Yahoo! has removed
the Protocol of the Elders of Zion from its auction site, it has not
prevented access to numerous other sites which reasonably "may be
construed as constituting an apology for Nazism or a contesting of Nazi
Defendants immediately moved to dismiss on the basis that this Court
lacks personal jurisdiction over them. That motion was denied.*fn5
Defendants' request that the Court certify its jurisdictional
determination for interlocutory appeal was denied without ...