Last May, William Patry discussed copyright infringement by a foreign nation and the concept of a transitory tort--which, he explains, copyright is not. That issue extends beyond the foreign sovereign immunity issue. While the case against Burundi does involve the FSIA, the infringement issue in the international context concerns issues that affect also non-sovereigns. The blog entries are several months old but remain useful. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington. Copright FSIA

On November 21, 2006, the United States Court of Appeals for the District of Columbia ruled in Sandra J. Simpson et al. v. Socialist People's Libyan Arab Jamahiriya, docket number 05-7049, on the so-called terrorism exception to the Foreign Sovereign Immunities Act. Under the exception introduced by the Antiterrorism and Effective Death Penalty Act of 1996, hostage taking is defined as used in Art. I of the International Convention Against the Taking of Hostages, 28 USC §1605(e)(2). Hostage taking adds a mens rea element to the detention of persons.

The plaintiffs alleged that Libyan forces took them hostage as leverage against the United States and Egypt, among other things, to generate the Convention-defined third-party compulsion. The exception operates in this matter to remove the immunity from civil suits Libya might otherwise have enjoyed.

Libya failed in meeting its burden to disprove that the three statutory criteria of the exception in 28 USC §1605(a)(7)(A), (B) apply. The communication of the intent to force compulsion on third parties is not statutory requirement. If hostage-taking is sufficiently alleged, the court may infer the defendant nation's state of mind and the intentions pursued with the detention of the defendants, the appellate court held. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington. Hostage FSIA