Copyright Extraterritoriality

The presumption against extraterritoriality is a fundamental principle of U.S. law, yet its application to copyright law remains unsettled. In recent years, the Supreme Court has formalized a two-step methodology for assessing the extraterritorial scope of federal statutes, culminating in RJR Nabisco, Inc. v. European Community. Despite this doctrinal shift, lower courts have inconsistently applied this framework to copyright infringement cases. In an age of digital streaming and generative AI using training data globally, this state of affairs is unsatisfactory. This Article examines the evolving state of copyright extraterritoriality in light of the Supreme Court's recent jurisprudence. It explores how courts have struggled to reconcile pre-RJR doctrines-such as acts of infringement that cross territorial boundaries, the authorization right, and the predicate act doctrine-with the Court's new analytical framework. The Article critiques the judiciary's failure to rigorously apply the two-step methodology and argues for a reassessment of copyright's territorial reach, particularly in the digital age. It concludes that a stricter adherence to the Supreme Court's modern extraterritoriality framework is necessary to ensure doctrinal coherence and to prevent the undue expansion of U.S. copyright law beyond its territorial limits. Specifically, courts should be loath to find infringement for acts outside of the United States; the authorization right should be limited to authorizations within the United States of infringing acts within the United States, and the predicate act doctrine should minimally be revisited, if not rejected.