Yahoo Loses Appeal in Nazi Memorabilia Case

Yahoo today lost a legal battle in its fight to make a French court's order against the company unenforceable in the United States.

In 2000, a French court ruled that Yahoo had to make it impossible for residents of France to participate in Nazi memorabilia auctions and to access content of that nature. If it failed to comply, Yahoo would have to pay a fine.

That lawsuit in France was brought by the Union of Jewish Students in France (UEJF) and the League Against Racism and Anti-Semitism (LICRA).

On Thursday, the Ninth U.S. Circuit Court of Appeals in San Francisco, in a 99-page decision, dismissed Yahoo's most recent appeal.

Six judges rejected Yahoo's arguments, for two different reasons. Three judges ruled that California courts have no jurisdiction over the French organizations. Another three judges stated that the case isn't "ripe," meaning Yahoo hasn't suffered sufficient hardship stemming from the French court's decision.

"It is extremely unlikely that any penalty, if assessed, could ever be enforced against Yahoo in the United States. Further, First Amendment harm may not exist at all, given the possibility that Yahoo has now 'in large measure' complied with the French court's orders through its voluntary actions, unrelated to the orders," the decision reads.

Background

Originally, Yahoo, saying it would be impossible to filter out users from a specific country to keep them from participating in such auctions and viewing such content, decided to remove the Nazi items and content from its Web site.

However, Yahoo later sued UEJF and LICRA in U.S. District Court for the Northern District of California in San Jose to have the French court's verdict declared unenforceable in the United States, arguing that it violates the right to free speech.

The district court sided with Yahoo; the French parties, however, filed an appeal with the Ninth U.S. Circuit Court of Appeals in San Francisco, which they won. Yahoo then asked the appeals court to again hear the case with 11 judges. That appeal was argued in March 2005, and the court's decision was handed down today.

More on Ruling

If Yahoo hasn't "in large measure" complied with the French court's orders, there is some possibility that in further restricting access to French users, Yahoo might have to restrict access to U.S. users, the court said. "But this possibility is, at this point, highly speculative. This level of harm is not sufficient to overcome the factual uncertainty bearing on the legal question presented and thereby to render this suit ripe," the decision further reads.

Yahoo now has the option to appeal to the U.S. Supreme Court. An attorney representing Yahoo in the case didn't immediately return a call seeking comment.

"We were seeking dismissal, so this is a win for my clients, and we're very happy about that," said E. Randol Schoenberg, from the law firm Burris & Schoenberg in Los Angeles, who acted as lead counsel for UEJF and LICRA.

The court's decision on the issues of jurisdiction and ripeness were right on target, Schoenberg said in an interview. "Just because someone sues you in a foreign country doesn't mean you can come here and sue them," Schoenberg said.

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