Plaintiff Penguin Group (USA) ("Penguin") appeals from an order of the United States District Court for the Southern District of New York (Gerard E. Lynch, Judge) granting defendant American Buddha's motion pursuant to Federal Rule of Civil Procedure 12(b)(2) to dismiss Penguin's copyright infringement action for lack of personal jurisdiction. Penguin Group (USA) Inc. v. Am. Buddha, No. 09 Civ. 528, 2009 WL 1069158, 2009 U.S. Dist. LEXIS 34032 (S.D.N.Y. Apr. 21, 2009). Penguin alleges in its complaint that American Buddha unlawfully uploaded to servers an unauthorized copy of four of Penguin's copyrighted works for downloading, via the Internet and free of charge, by any of the 50,000 members of what American Buddha terms its "online library."
The sole issue on appeal is whether there is a basis for personal jurisdiction over American Buddha in New York enabling the district court to decide this dispute. Penguin asserted that the court has such jurisdiction under a provision of New York's Long-Arm Statute, N.Y. C.P.L.R. § 302(a)(3)(ii), that allows for jurisdiction over an out-of-state defendant with no contacts with New York, if, inter alia, the defendant is alleged to have committed a tortious act outside the State that caused, and reasonably should have been expected by the putative defendant to cause, injury to a person or property within the State.
The district court recognized two competing lines of authority interpreting section 302(a)(3)(ii), one that views the situs of injury as the location of the infringing conduct and one that views the situs of injury as the location of the plaintiff and, in some cases, the location of its intellectual property. Relying on the first line of authority and rejecting the second, the court concluded that the situs of the injury allegedly resulting from the asserted infringement of Penguin's copyrights would be where the book was electronically copied -- presumably in Arizona or Oregon, where American Buddha and its computer servers were located -- and not New York, where Penguin was headquartered. Accordingly, the court dismissed the case for failure adequately to plead injury in New York. Penguin, 2009 WL 1069158, at *4, 2009 U.S. Dist. LEXIS 34032, at *13.
Judge(s): Chin, Katzmann, and Sack
Jurisdiction: U.S. Court of Appeals, Second Circuit
Related Categories: Copyright
|Circuit Court Judge(s)|
|Plaintiff Lawyer(s)||Plaintiff Law Firm(s)|
|Richard Dannay||Cowan Liebowitz & Latman PC|
|Thomas Kjellberg||Cowan Liebowitz & Latman PC|
|Defendant Lawyer(s)||Defendant Law Firm(s)|
|Charles Carreon||Online Media Law, PLLC|