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A San Jose, Calif., federal judge could determine today how far foreign countries can go in attempting to force U.S. Internet providers to comply with their laws. Yahoo Inc., which is fighting French efforts to block access to Nazi memorabilia offered on the portal’s auction sites, says it’s a matter of free speech. “It should end at the First Amendment,” said Michael Traynor, a partner in the San Francisco office of Cooley Godward, representing Yahoo. But attorneys representing a pair of French organizations say it’s not that simple. Observers expect the dispute to shape the debate over who controls content on the global Internet, and how. “If Yahoo were not to prevail in this case, it’s not overly dramatic to say it would have devastating effects on the Internet,” said Jodie Kelley, a partner with Washington, D.C.’s Jenner & Block. “No individual would be able to post content on the Internet without foreign countries hauling them into court.” Relying on the First Amendment, Yahoo is asking U.S. District Judge Jeremy Fogel for an order that would essentially nullify a French judge’s order requiring it to block French citizens from accessing the illegal materials. But attorneys representing the French groups want Fogel to allow them discovery, in part to defeat Yahoo’s claims that it would be “impossible” to comply with the order. “I think Yahoo wants the court to say hooray for the First Amendment and this case,” said Ronald Katz, a Coudert Brothers partner representing the French parties. But, he said, “there are a lot of questions still out there.” The dispute began in April 2000 with a suit in French court arguing that Yahoo’s auctions of Nazi photographs, coins, stamps and texts broke French anti-Nazi laws. The laws, passed in the wake of World War II, outlaw even the ownership of Adolf Hitler’s “Mein Kampf”. In November 2000, a French judge ordered Yahoo to do whatever was necessary to block access, even if it meant reconfiguring the Santa Clara, Calif.-based company’s servers. Yahoo, which faces fines of as much as $13,000 for each day of noncompliance, says it isn’t technically feasible to identify and block individual French users from accessing part of its site. The next month, Yahoo filed a declaratory relief action in San Jose against the two groups. In June, Fogel ruled that he had jurisdiction in Yahoo v. La Ligue Contre le racisme et L’antisemitisme, C 00-21275, saying California has an interest in providing effective legal redress for its residents. “The basic issue is whether the U.S. courts can be called to enforce a foreign judgment that is patently inconsistent with the First Amendment,” says Robert Vanderet, a partner in the Los Angeles office of O’Melveny & Myers who is also representing Yahoo. Vanderet said this case extends beyond the confines of the Internet to other forms of media. “This case poses the issue of whether foreign governments can use U.S. courts to restrict speech,” Vanderet said. Could a Cuban court, he asks, silence U.S. radio stations spouting anti-Castro slogans? In fighting the suits, Yahoo also relies on the Communications Decency Act, which it says shields Internet service providers like it from any liability for postings by third parties. Katz, who represents the French groups, says Yahoo has participated in the French action and should see it through appeals there, rather than seeking a more favorable forum here. And he says he’s hoping that additional discovery will help his clients clear the First Amendment hurdle. Among other things, his clients hope to show that Yahoo could easily restrict access to the site in France, meaning that compliance with the French order wouldn’t impinge on the First Amendment rights of Yahoo or its U.S. users. “They have to prove their case. Right now they want to prove their case without any discovery,” Katz said. “I’ve never had a case without discovery.” Katz also says his clients haven’t sought to enforce the order, meaning it poses no imminent harm to First Amendment interests. “You don’t have to have the sheriff at the door to get First Amendment protections when your First Amendment rights are threatened,” retorts Traynor, the Cooley partner representing Yahoo. Nor does Traynor see the need for additional discovery. “This is a pure question of law.” Business and Internet trade groups are closely watching this case from the sidelines. Nearly a dozen national business and trade groups, including the U.S. Chamber of Commerce and the Information Technology Association of America, have signed on to amicus briefs. Kelley says Yahoo isn’t the only site that’s been sued because of objections to contents in other countries. Similar suits are pending in Germany, Italy, Israel and Australia. “Anybody can get to any site on the Web. If that means every Web site is under the jurisdiction of every single country, the result is chaos,” said Kenneth Richieri, a member of the Online Publishers Association, which joined in filing an amicus brief in the case.

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