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DMCA Doesn't Confer Personal Jurisdiction

Doe v. Geller, 533 F.Supp.2d. 996 (N.D. Cal., Feb. 4, 2008)

Brian Sapient is the alias of a member of the “Rational Response Squad,” an activist group engaged in an ongoing debate over evolution versus creationism. Sapient is committed to debunking what his group maintains are “irrational beliefs and theories,” and, in furtherance of the group’s mission, promotes campaign messages online via YouTube.

Uri Geller, a performance artist who claims that his psychic powers enable him to bend spoons using only his mind, is the director and shareholder of Explorologist, Ltd., a private concern registered in London, England. Sapient uploaded a video clip to YouTube, originally aired on the NOVA television program, that featured an illusionist named James Randi challenging Geller’s powers. The NOVA clip included three seconds of another video clip that featured “Dr. C. J. Hughes” describing Geller’s psychic powers (“Hughes clip”).

As the copyright owner of the Hughes clip, Explorologist sent YouTube a takedown notice under the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. §512(c)(3), via fax and email. YouTube flagged and removed the NOVA clip and temporarily suspended Sapient’s account, and for a few weeks none of Sapient’s videos were viewable on YouTube.

Explorologist then filed a complaint against Sapient in federal court in Pennsylvania, where Sapient resided, alleging copyright infringement under British law. In response, Sapient filed a complaint for a declaratory judgment in California, where YouTube is incorporated. Sapient requested a finding that the NOVA video clip posting was noninfringing and that Geller and Explorologist knowingly misrepresented copyright infringement in their takedown notice in violation of §512(f), which provides penalties for misrepresentation of infringement. 17 U.S.C. §512(f). Geller and Explorologist brought a motion to dismiss Sapient’s complaint for lack of subject matter and personal jurisdiction.

In a case of first impression, the California District Court noted that the subject matter jurisdiction under §512(f) was complex. Explorologist and Geller argued that they sent their YouTube takedown notice via fax and email from England. This was significant because U.S. copyright laws do not apply extraterritorially. Subafilms, Ltd. V. MGM-Pathe Comm’ns Col., 24 F.3d 1088 (9th Cir. 1994). The Court was unable to come to a satisfactory conclusion, however, regarding jurisdiction over cross-border communications, explaining that other §512(f) suits did not resolve the issue.

Turning to personal jurisdiction, the Court considered whether Explorologist’s single act of sending the takedown notice to YouTube in California was sufficient to establish personal jurisdiction in California. Applying the Ninth Circuit’s seven-part test for “reasonableness,” the Court concluded that under the totality of the circumstances, Explorologist could not reasonably anticipate being called upon to present a defense in a distant forum, under a foreign legal system. FDIC v. British-American Ins. Co., 828 F.2d 1439 (9th Cir. 1987). Also, the DMCA does not require copyright owners who send takedown notices to consent to personal jurisdiction. 17 U.S.C. 512(c)(3).

Although the California District Court dismissed the complaint for lack of personal jurisdiction, Sapient was not without recourse. Sapient could raise his §512(f) claim as a counterclaim in the Pennsylvania action under a regular jurisdiction analysis or the federal long-arm statute. Fed.R.Civ.P. 4(k)(2).



Judge(s): Vaughn R. Walker, Chief Judge
Related Categories: Civil Procedure , Civil Remedies , Technology
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Marcia Hofmann Electronic Frontier Foundation
Corynne McSherry Electronic Frontier Foundation
Jason M. Schultz Electronic Frontier Foundation

Defendant Lawyer(s) Defendant Law Firm(s)
Jeffrey Vucinich Clapp Moroney Bellagamba Vucinich Beeman & Scheley
Richard Winelander The Winelander Law Group



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17 under youtube's terms of use, such as suspension of his account. 11 12 ideos/2007/04/13/1175971361981.html (last visited jan 3, 2008) over defendants. under california law, "[a] court of this state 25 `interjection' into the state to satisfy the [purposeful availment worldwide regulator of free speech in the digital age. 1 15 10 1343 (wire fraud)), but these too appear to provide scant fed r civ p 4(d)(4) (2007) ("when the plaintiff files a waiver, 21 26 9 23 20 9 in the united states district court in a motion challenging personal jurisdiction, the 4 9 3 24 15 international shoe reasonableness standard, and we shall not 24 28 16 which permits jurisdiction over foreign acts that authorize as we have previously recognized, calder stands for the 13 4 21 16 17 approach); see also national football league v primetime 24 joint 16 corp, 69 f3d 381, 387 (9th cir 1995) (finding no jurisdiction over 242020071019 (last visited dec 4, 2007). by nearly eliminating the defendant's burden of litigating in the forum state. see burger jurisdiction. it is "unreasonable and unfair" for this court to 1 europe). on the other hand, modern technology has reduced the 22 king, 471 us at 477 ("[a] defendant claiming substantial resources. and count i of plaintiff's complaint here becomes moot committed a tort in california, defendants' purposeful interjection 3 interjection, the less is jurisdiction to be anticipated and the move to dismiss on the grounds that the complaint's allegations sapient ("sapient") who, as part of his "controversial religious 24 forum; 14 jurisdiction over both explorologist and geller because each has us 783 (1984): it is so ordered. who must defend oneself in a foreign legal system should have 6 restrictive means such as conflict of law rules or an accommodating 6 no federal court has ever addressed subject matter to [litigate in england], but that is not the test." roth, 942 f2d limitations. see haisten v grass valley med reimbursement fund, not act with reasonable care or diligence before sending" the supra, at 824. instead, perhaps misrepresentation law rather than 25 venue transfer. see burger king corp v rudzewicz, 471 us 462, 476- case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 8 of 25 directly. 480 us at 114-15. here, neither party is a california 12 6 1082 (9th cir 2000) (finding personal jurisdiction in california 24 11 13 the court need only satisfy itself that its exercise of 28 6 if explorologist prevails on its infringement claim in v / into california is not extensive. accordingly, this factor weighs 28 15 lawsuit will impair the free speech of californians. 23 suffice it to say, subject matter jurisdiction is neither of proving the unavailability of an alternative forum." core-vent, 3 20 4 7261e5de-56fc-11db-9110-0000779e2340.html (last visited dec 4, any person who knowingly materially misrepresents [in a 12 explorologist, ltd ("explorologist") and uri geller ("geller") the circumstances the defendant could reasonably anticipate being 17 28 5 f2d 974, 988-89, 991 (2d cir 1975) (securities fraud); 13 usc quite the opposite: "[n]o doctorate in astrophysics is required to 7 17 8 raises a misrepresentation claim. accordingly, it may be improper libraries, the american library association and google have moved 16 harris rutsky, 328 f3d at 1132; see insurance co of north am v case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 16 of 25 and asserts only that the court may exercise specific jurisdiction 25 4 iii 14 sinatra, 854 f2d at 1199. the court should not dwell upon this plaintiff is not a california resident, california's legitimate 15 case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 5 of 25 14 1. the nonresident defendant must do some act or consummate antonio vargas, youtube creates issues debate, wash post (aug 8, 27 count i of the complaint alleges that defendants "knowingly 12 18 12 pennsylvania. explorologist ltd v sapient, no 07-1848 lp (e d pa). 7 5 7 that the defendant allegedly have (1) committed an defendants argue that the court lacks both subject matter and f2d at 1271, quoted in core-vent corp v nobel industries ab, 11 f3d 2 in the united states is also relevant to sovereignty 3 jurisdiction is unreasonable. personal jurisdiction over foreign defendants in wholly foreign 23 25 the seven factors must be balanced against one another to determine 25 4 email were sent. that fact is significant because united states 2 notice sent to youtube. "even if there is sufficient prong], the degree of interjection is a factor to be weighed in 10 28 22 9 and the court ruled that the purposeful interjection factor weighed jurisdiction does not exceed constitutional due process 6 16 4 28 intended to create an effect in california or even if defendants (9th cir 1991). in this case, each factor suggests that 15 21 10 should be resolved by congress, not this court. v mgm-pathe comm'ns co, 24 f3d 1088, 1094 (9th cir 1994). but california residents in a claim that did not affect safety 24 17 26 procedures, then the purposeful direction or purposeful 19 27 process when they adjudicate lawsuits with no connection to the 477 & n20. that admonition is relevant if the issue is the (1) the extent of the defendants' purposeful interjection "sapient" as a pseudonym is presumably a reference to evolutionary even so, treating this case as an ordinary tortious that personal jurisdiction in the northern district of california 6 6 9 the use of an agent in the united states might alleviate a foreign 1 18 10 against personal jurisdiction in california over foreign defendants see, for example, my body is a cage, at http://www.youtube.com/ and email. plaintiff suggests that copyright "authorization" law, (even if unintended) consequences. if plaintiff's theory of 19 the supreme court held in asahi that courts violate due 20 their own television show and broadcast the episodes in serial form 21 the only activity that occurred in california was youtube's act of analysis. 9 17 fees, incurred by the alleged infringer * * * who is and kevin allison, how to set a course for a shooting star, 27 surrounding the content of the takedown notice are insufficient already a party to related litigation in his home state. 20 interest in convenient and effective relief; and 15 november 15, 2006, plaintiff uploaded a video clip (the "nova 25 and creationism" (see doc #30 at 2), plaintiff's choice of takedown notice that was sent to youtube in san bruno, california, 20 22 case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 17 of 25 vi see data disc, 557 f2d at 1285. 13 16 5 resident, and plaintiffs have not shown that the outcome of this 25 24 16 part of an assessment of the reasonableness of subjecting a 17 25 3 16 motion to dismiss for lack of personal jurisdiction is granted. defendants argue that the court lacks personal to 512(f) litigation have offices in silicon valley, is the challenge to the court's subject-matter jurisdiction is not 23 10 10 intentional act, (2) expressly aimed at the forum state, found not in any recent, binding precedent but rather in the first outcome of this case. see corporate inv bus brokers v melcher, 824 27 a single contact with the forum state if the claim "arise[s] out of (see doc #26 exh 5 at 7) and features dr hughes, whom defendants discouraging other fans from purchasing the musician's live 28 27 controversy; 374 f3d 797, 802-03 (9th cir 2004). purposeful availment in tort 15 22 (4) the forum state's interest in adjudicating the 10 18 5 been done. because of the pennsylvania lawsuit, defendants' burden ltd, 8 that the file may be accessed and viewed anywhere in the world, all 23 target of the takedown notice lives, and therefore the sender does 15 "[l]itigation against an alien defendant creates a higher underlying facts. the takedown notice to youtube in california is sufficient to state. hence, in some cases, california (the state to which the exercise of personal jurisdiction by a california court over asahi known" that the video was noninfringing and that defendants "did 11 10 challenging geller's powers. doc #1 at 13-14. the nova video other arguments need not be addressed. the supreme court has held 18 13 16 state." lake v lake, 817 f2d 1416, 1421 (9th cir 1987). 2 22 27 to address these and other concerns, congress passed the having more than 200 clips removed" from youtube using bogus 18 21 1 const art i, 2(a); cal code civ proc 425.16(a). those reasonableness. see roth v garcia marquez, 942 f2d 617, 623, 625 youtube takedown notice occurred in england, where the fax and #45. many third parties including the american association of law the jurisdiction test, which is that jurisdiction must be 18 5 26 state other than his residence, then the analysis might be 9 12 9 video") to youtube. the video originally aired on the nova requirement, "apply[ing] different purposeful availment tests to 5 deduce that trying a case where one lives is almost always a fed r civ p 13(a), 13(f), 13(b); aj indus, inc v us dist court for 7 constitution of this state or of the united states." cal civ code 21 attempt to list all the factors that might, in a different case, be 11 sets them to his favorite song, using both without permission. 21 14 14 such as sapient who wish to rebut a takedown notice must consent to electron-based injuries that sapient alleges here. see doc #1 at 20 but because digital content is so easy to generate, the the ninth circuit has set out seven factors to be weighed eastern district of pennsylvania, where plaintiff resides. see doc 15 10 16 explorologist as a counterclaim in the pennsylvania action. see 14 suspended plaintiff's account for more than two weeks, during which see 17 usc 512(f) (2000). plaintiff claims that defendants that any asserted unfairness could not be alleviated by less 26 11 any stopping point to this district's jurisdiction over foreign 15 16 (9th cir 1987) (declining to rule on purposeful availment in light 13 17 case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 25 of 25 this factor also requires the court to evaluate where the 24 analysis or the federal long-arm statute. see fed r civ p 4(k)(2). (1996) (holding that "[f]alse representations entering connecticut 20 soccer game in california so that grandparents may view it in conducting activities in the forum, thereby invoking the 11 15 some transaction with the forum or perform some act by "allegedly intended their actions to cause harm in california" - 21 4 3 vicarious infringement depend on the particular derivative 23 defendant to jurisdiction. for purposes of the present case we that if "a district court has before it a straightforward personal 3 27 4 1280, 1285 (9th cir 1977). when the motion to dismiss constitutes case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 23 of 25 under frcp 9(b) and frcp 8(a). lastly, defendants move to transfer allarcom but noting that the european community has adopted that communications. compare allarcom pay television, ltd v gen inst online, as in the case of the show "lonelygirl15," which drew flagged and removed in response to a copyright infringement 9 matter jurisdiction). visited dec 4, 2007); yinka adegoke, nonprofits turn to youtube to 18 18 5 8 taxonomy, or relatedly, is a derivative of sapientia, latin for 5 time all his posted videos were unavailable. doc #1 at 17. 2 restatement of conflict of laws 377 (1934) (defining the "place 22 19 around the world from indonesia to italy, suriname to siberia 12 11 is the `purposeful direction' of a foreign act having 5 second, the court's ruling does not require a per se bar 7 21 28 (9th cir 1998) (finding jurisdiction over a television broadcast 14 district of pennsylvania. count ii of plaintiff's complaint, which 26 18 unconstitutional," such as venue transfer. burger king, 471 us at federal court, has the burden of establishing that jurisdiction 2 slightly. 9 assert jurisdiction over british residents in a suit brought by a 11 is infringing. federal courts sitting in california could assert 18 13 24 26 venture, 211 f3d 10, 13 (2d cir 2000) (rejecting allarcom and 470, 473 (9th cir 1995); see schwarzenegger v fred martin motor co, 8 the second factor the burden on the defendants weighs defendants waived service of process, thereby mooting the effect of 1 21 personal involvement with the litigation is not likely to be 11 9 623-24. accordingly, this factor weighs against jurisdiction and no clear guidance. accordingly, the court declines to rule on seeks a declaratory judgment of noninfringement, is the mirror forum state. see 480 us at 113-16. in asahi, a taiwanese auto in addition to defendants' challenges on the merits, law, and sapient responded with a motion for partial summary 3 also weighs against jurisdiction. "the plaintiff bears the burden registry in virginia thereby interfering with the domain name detailed process allowing a copyright owner who observes infringing underway. see no 07-1848 doc #42, 44. judge pollak requested 9 the defendants would violate due process because jurisdiction would jurisdictional barrier than litigation against a citizen from a millions of viewers on youtube. see virginia heffernan and tom a defendant's initial response to the complaint, the plaintiff need beliefs," is a member of the "rational response squad," which is 9 11 nevertheless, and this factor weighs against jurisdiction slightly. international court of internet law. 8 plaintiff advances no support for his theory of double service. dmca in 1998. 17 usc 512 (2000). section 512(c) lays out a extensive. explorologist's claim of undue burden is far less the most efficient resolution of the controversy is in the eastern 6 19 jurisdiction in a particular case: held, in a near-unanimous section of a notoriously splintered casualty co v data broadcasting corp, 158 f supp 2d 1044, 1049 (n d case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 4 of 25 26 plaintiff's attempt to establish personal jurisdiction 1 16 3 prong of the jurisdiction test. although defendants allegedly sent 8 18 2 17 19 18 6 1482, 1488 (9th cir 1993). in core-vent, the ninth circuit found 3 received, not sent. but the best support for that statement is 13 motion to dismiss for lack of personal jurisdiction is granted. california was not substantial, comprising only the single takedown 13 could assert jurisdiction over every single takedown notice ever does not provide a satisfactory answer whether united states courts once upon a time in the west with the arcade fire's my body is a 19 services, inc v bell & clements ltd, 328 f3d 1122 (9th cir 2003); instead, sapient's case for personal jurisdiction 12 17, 23, 26. the cases cited by both parties are all 20 18 6 20 marina salina cruz, 649 f2d 1266, 1270 (9th cir 1981) ("there is no injured by such misrepresentation[] as the result of the 11 5 watch?v=pyp34v6lmcc (mixing the climactic scene from sergio leone's 14 17 that on march 23, 2007, an agent of defendants sent youtube a 17 16 judgment on the british copyright law claim. see no 07-1848 doc 5 15 1 zeller, well, it turns out that lonelygirl really wasn't, ny times witnesses and evidence are likely to be located. see core-vent, 11 17 usc 512(f). residents against a pennsylvania resident in pennsylvania federal 17 9 do not have such an agent. and there is no indication that 26 performance dvd. youtube does not actively monitor the content of (5) the most efficient judicial resolution of the 7 plaintiff's interest in convenient and effective relief. in fact, see youtube terms of use 7, at http://www.youtube.com/t/terms 20 26 2 interests in the dispute have considerably diminished." asahi, 480 1 14 8 restatement of conflict of laws, published in 1934. see 21 enquirer, 854 f2d 1191, 1199 (9th cir 1988)), and defendants' 28 4 (consider knipple v viking communications, ltd, 236 conn 602, 610 22 26 19. plaintiff then alleges that defendants "knew or should have 17 16 copyright to the hughes clip. doc #1 at 14. plaintiff alleges disputes. consider, for example, erik jensen, boy dupes youtube to the ninth circuit has since expanded the first prong, the court's "balance" of the above factors weighs against is unreasonable. 6 18 9 for free. for instance, a family might post a video of a child's 14 9 11 20 provisions apply to california residents, not pennsylvania internet for leave to file an amicus brief in support of sapient. see no 6 16 6 demonstrate "purposeful direction" into california under the first 27. plaintiff seeks damages, declaratory and injunctive relief, 15 the last factor the existence of an alternative forum copyright claim, copyright law may be of little help. plaintiff 16 and the slight interests of the plaintiff and the forum state, the 22 20 nova video. sapient "has not shown that the [claim] cannot be 2 512(g)(3)(d)), but the statute does not require copyright owners already sued sapient in pennsylvania. litigation in california 11 12 california on business." harris rutsky, 328 f3d at 1132-33; see 28 subject matter jurisdiction and has granted in part and denied in significant weight in assessing the reasonableness of stretching 13 content on a website like youtube to have the content taken down. who send takedown notices (such as defendants here) to consent to one of plaintiff's video postings infringed defendants' copyrights. 22 (such as selecting and monitoring american counsel) has already 12 7 7 13 1 1 21 28 at 625; see core-vent, 11 f3d at 1490; sinatra, 854 f2d at 1201. complaint alleges that by posting the nova video, sapient committed 19 8 unreasonable. the northern district of california is not an 6 19 18 21 13 14 25 through physical service of process must fail. doc #30 at 13-15. defendants. 2 13 22 also known as the purposeful availment or purposeful direction the defendant's forum-related activities. 19 in defendants' favor. core-vent, 11 f3d at 1487, 1488. here, 4 18 accommodated through means short of finding jurisdiction illinois. or a pair of young writers might write, film and produce 23 copyright laws do not apply extraterritorially. see subafilms, ltd 28 case is the misrepresentation provision of the dmca, which 12 because the georgia defendant mailed a letter to a domain name 23 legitimacy of the judicial system (see asahi, 480 us at 113), and data disc, 557 f2d at 1287. members and promote [his] activist messages and campaigns online." 4 17 on the facts of this case, the balance tips in favor of defendants. 17 usc 512(c)(3). youtube then must remove the material from its 19 23 20 13 28 post a homemade video that takes scenes from his favorite movie and 4 23 16 case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 19 of 25 jurisdiction] is considerably less difficult to decide." cantor toeppen, 141 f3d 1316, 1323 (9th cir 1998). the "purposeful direction" prong of the jurisdiction test, either see subafilms, 24 f3d at 1090-93. here, however, plaintiff alleges dole food co, inc v watts, 303 f3d 1104, 1111 (9th cir 2002) 9 ii 7 claims to have psychic powers such as the ability to bend spoons 19 10 11 wisdom. effect in the forum state." based on these 10 less reasonable is its exercise." insurance co of north am, 649 22 10 14 case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 6 of 25 10 26 the fifth factor - the most efficient judicial resolution 11 18 california's interest in enforcing its automobile safety standards 2 22 compelling than geller's, of course, because explorologist has effectively remedied in [pennsylvania] or [england]." sinatra, 854 the nova video does not infringe defendants' copyrights and 6 if that result seems asymmetrical and unfair, then the problem to bring a 512(f) claim over a foreign defendant. the court need 15 10 benefits and protections of its laws. the copyright owner must send a notification to youtube ("takedown 2007), at http://blog.washingtonpost.com/ the-trail/2007/08/08/ 5 6 (internal citations omitted). personal jurisdiction may flow from 15 3 6 25 his claims against geller using either a regular jurisdiction jurisdiction under 512(f), and the subject matter jurisdiction f2d 786, 791 (9th cir 1987). with his mind. doc #1 at 14. plaintiff is john doe aka brian 1 27 26 20 demanding that the video be removed. doc #1 at 15. later that takedown notice is sent) might be the only plausible state in which vi 25 13 8 21 3 5 14 5 misrepresentation, as well as a declaratory judgment of 24 to import jurisdiction principles from one specific context the 21 8 contre le racisme, 433 f3d 1199, 1207 (9th cir 2006) (rejecting the 15 28 5 burden of litigating in another country (see sinatra v national 17 copyright infringement under british law, commercial disparagement accordingly, defendants have made a "compelling case" common law tort principles, the court might be inclined to rule case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 14 of 25 the long arm of personal jurisdiction over national borders." dismiss. doc ##24, 25. defendants argue that the court lacks happenstance that many internet companies that are not even parties witnesses is "no longer weighed heavily given the modern advances it is that second clip the hughes clip within the nova service provider relying upon such misrepresentation in asahi, 480 us at 114), and this factor weighs against jurisdiction. knowingly misrepresented to the youtube file-sharing company that takedown notices). such broad jurisdiction, premised solely on the 21 from the united states to africa); see william patry, choice of law testimony and its relevance or importance to this lawsuit - with holding that "each step" in the transmission procedure can give 20 17 defendants' state; 19 states, but much of the burden of litigating in the united states 4 the court concludes with three final notes. first, driven medium. anyone with access to the internet can sign up for 13 noninfringement. doc #1. defendants respond with a motion to 22 24 pennsylvania. accordingly, sapient's claims can be resolved most california's lack of an interest in this dispute and the lack of a television broadcast from the united states to canada), with los the youtube internet video website is an entirely user- 7 13 2 that the situs of the act is the place where a fax or email was 1 8 14 against personal jurisdiction. 25 case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 15 of 25 5 in a state other than their home state, and plaintiffs rarely 6 personal jurisdiction. because the court agrees that this case 22 be viewed as intentional. see the adeline, 13 us 244, 253 (1815). 4 1 12 8 california as "important" to his claim. 22 24 f2d at 1200. sapient fails to articulate any concerns that paint because, although the takedown notice was sent to california, it the postings on its website. 26 not purposefully direct his actions at any specific individual (7) the existence of an alternative forum. justice. see schwarzenegger, 374 f3d at 802. defendants must show committed to "debunking what it maintains are irrational beliefs dole foods, 303 f3d 1104; bancroft & masters, 223 f3d 1082; wien 26 27 8 24 5 1 8 26 20 interpretations of calder, the "effects" test requires would be a waste of the parties', the attorneys' and the court's 2 consider sinochem intl co v malaysia intl shipping corp, 127 sct illus 5, 7. the court might analogize to other federal 20 17 reasonable. see fdic v british-american ins co, 828 f2d 1439, 1442 1 3 ltd, 784 f2d 1392, 1396 (9th cir 1986). establish personal jurisdiction in california courts. a youtube account and upload any video file to youtube's servers so 15 "jurisdictionally sufficient amount of harm" test). instead, court asserting claims under british law. california is not the distinguishable easily on one or both of those grounds. see that the court has specific jurisdiction over defendants arising 28 troublingly, a youtube user might film his favorite musician's live 5 copyright law should control the subject matter jurisdiction dispute; 3 7 proposition that purposeful availment is satisfied even 9 3 25 17 find jurisdiction and transfer venue to pennsylvania. 26 angeles news service v reuters television intl, ltd, 149 f3d 987 of the conclusion that the exercise of jurisdiction would be provides, in relevant part: exists. see data disc, inc v systems tech assocs, inc, 557 f2d f3d at 1489. plaintiff claims vaguely that he will need to call 8 22 defendants have the burden of making a "compelling case" doc #1 at 12. plaintiff uses the alias "brian sapient" because 8 (2) the burden on the defendant of defending in the 14 order unparalleled opportunities for free expression. see richard waters 9 13 9 15 claim is british (see doc #26 exh 2). defendants' lack of an agent 2 13 case law is inapposite. authorization law and other species of 4 action is proceeding. for the reasons set forth below, defendants' "he receives a substantial amount of abusive correspondence, 410.10. given the broad reach of california's long-arm statute, 23 12 2 represent the australian broadcasting corporation and "succeeded in 17 usc 512(f). plaintiff seeks damages from the alleged 15 defendant's burden (see core-vent, 11 f3d at 1488), but defendants 3 the fourth factor - the forum state's interest in 26 served at the time of filing the waiver.") (emphasis added). 1 20 2 25 language of 512(f), plaintiff has not explained how the removal 17 television program and features an illusionist named james randi of england and a director and controlling shareholder of words, that it would not comport with fair play and substantial home states (or in the united states) over defendants in 512(f) 17 13 specific witnesses nor describes the subject matter of their 6 this dispute concerns the copyright infringement takedown defendants' contacts with california are even more attenuated 2 fitzgerald, lp v peaslee, 88 f3d 152, 155 (2d cir 1996), cited in the international context, the heavy burden on the alien defendant, 13 25 against jurisdiction slightly. "the unique burdens placed upon one accident occurred in california. the court reasoned that case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 12 of 25 20 25 http://www.foreignpolicy. com/story/cms.php?story_id=3676 (last any reasonable specificity. see doc #30 at 17; compare carolina the extent of defendants' "purposeful interjection" into california, usa, for sending off a fax claiming that a video clip 1 17 6 13 takedown notice." doc #1 at 20. count ii seeks a declaratory interjection inquiries might be different. here, had defendants sapient does not raise a general jurisdiction argument 24 (3) the extent of conflict with the sovereignty of the (3) causing harm that the defendant knows is likely to be defendants or their representatives "frequently travel to 19 cost of mass media distribution, youtube offers its users 22 judge pollak has already denied a motion to dismiss for lack of case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 7 of 25 provisions under the digital millennium copyright act ("dmca"). 27 defendant's libelous article circulated in california to be an 26 3 under the calder effects test (as plaintiffs urge) or under the violations in the united states, is instructive, but that body of "attenuated" contact with california - even though defendants 28 14 27 notice") identifying the offending video and asserting under in communication and transportation." panavision intl, lp v 23 7 21 27 23 25 11 shoe co v state of washington, 326 us 310, 320 (1945). defendants' mechanical or quantitative test for jurisdiction under the 24 dr c j hughes describes geller's asserted psychic powers ("hughes actor liable for an alleged tort takes place"); see also cmt a, delete videos, sydney morning herald (apr 14, 2007), at 22 appropriate and reasonable based on all the circumstances. if a 18 26 3 16 24 23 27 3 8 25 ruhrgas, 526 us at 588. issue in this case is complex. defendants argue the court lacks plaintiff, as the party seeking to invoke the jurisdiction of the a british resident. see harris rutsky, 328 f3d at 1133. moreover, 28 8 20 users, inanimate computer files or lawsuits filed by british case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 13 of 25 neither direct nor indirect infringement. overall, copyright law learjet corp v jensen, 743 f2d 1325, 1333 (9th cir 1984) ("if [this plaintiff's posting infringed defendants' copyrights. doc #1 at 21 23 10 may exercise jurisdiction on any basis not inconsistent with the the court may presume that england has a sovereign f2d at 1442. 4 10 removing or disabling access to the material or activity defendants in 512(f) cases. accordingly the court declines to cal 2001) (walker, j). and in any event, the convenience of case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 21 of 25 12 7 16 20 jurisdiction were upheld, then the northern district of california air alaska, inc v brandt, 195 f3d 208 (5th cir 1999); resnick v 7 attorneys' fees and costs. doc #33-2 (discussing defendants' travel in the united states and 13 26 and appropriation of name or likeness. see doc #26 exh 5. 6 7 geller is not a party to that action, sapient will be able to bring reindl, choosing law in cyberspace: copyright conflicts on global any subsequent physical service in the state of california. see 14 22 takedown notice from explorologist. doc #1 at 16. youtube 12 5 1 weighed against defendants' interests in a fair trial and the case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 20 of 25 20 insufficient minimum contacts with california. plaintiff responds 4 allege the kind of metaphysical internet free speech injuries or 7 jurisdiction issue presenting no complex question of state law, and pennsylvania. sapient is correct that there is no presumption that california does not appear to be important to the 16 should be dismissed for lack of personal jurisdiction, defendants' 7 into the forum state's affairs; by a defendant "whose only `contact' with the forum state consideration. see harris rutsky, 328 f3d at 1133, citing gates contract and tort cases." ziegler v indian river county, 64 f3d a john doe a/k/a brian sapient, 11 12 from improper takedown notices" (see doc #30 at 12 n7), citing the was too attenuated and "overly broad" when applied to non- 2 2 the takedown notice to youtube in california, sapient resides in would apply to cross-border communications such as defendants' fax not decide the implications of that fact here because sapient is 4 4 nonprofit groups use youtube to spread their messages. see jose 4 direction grounds, however, because that body of precedent does not in 512(f) cases. in some instances, jurisdiction might be 25 clear nor definitive. accordingly, the court is "convinced that 6 #29 (notice of pendency of other action or proceeding). that 512(c)(1)(c). the infringing user might also suffer penalties 24 8 california state court, seeking indemnification arising out of a precluded from suing in pennsylvania or england. see harris plaintiff eventually set his sight on geller. on 24 23 pennsylvania resident over an allegedly tortious fax sent to a 7 2 3 central dist of cal, 503 f2d 384, 387-89 (1974). and although 7 1 that exercise of jurisdiction would be unreasonable; in other plaintiff, 23 26 17 the video clip at the heart of the dispute was filmed in england liable for any damages, including costs and attorneys' court could exercise personal jurisdiction in a libel case though image of explorologist's copyright infringement claim pending in in london, england. doc #1 at 5. defendant geller is a resident 8 case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 3 of 25 day, youtube informed plaintiff that the nova video had been case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 22 of 25 the glaring flaws in plaintiff's case for jurisdiction are [reasonableness prong].* * * the smaller the element of purposeful 5 9 penalty of perjury that the sender is the copyright owner and has a 11 therefore the takedown notice was a misrepresentation. doc #1 at 1 16 theory that defendants' tortious conduct occurred in california 7 (9th cir 2007); yahoo!, 433 f3d 1199; harris rutsky & co ins the court does not rest its decision on purposeful 27 6 1184 (2007) (holding that a district court may address a forum non 21 iv clip"). doc #1 at 14. ruling. sapient will be able to raise his 512(f) claim against materially misrepresent[ed]" to youtube in the takedown notice that in this instance would be unreasonable and unfair."). 26 18 includes "three seconds" of another video clip in which a man named 10 10 defendant relies regularly and consistently on youtube's takedown ag v marathon oil co, 526 us 574, 588 (1999) (footnote omitted); case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 9 of 25 that material or activity is infringing * * * shall be 21 disabling access to plaintiff's video. other than by reciting the 15 21 13 18 9 position will not always be able to establish jurisdiction in their 14 http://www.smh.com.au/news/technology/boy-dupes-youtube-to-delete-v case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 11 of 25 3 6 and theories." doc #1 at 3, 12. as part of that mission, 12 3 9 explorologist. doc #1 at 4, 6. geller is also a performer who unreasonable even though the key factual event the motorcycle 07-1848 doc #46. duplication here of those complicated proceedings 5 22 cases is analyzed under the effects test from calder v jones, 465 i plaintiff resided in new york and defendant resided in ohio)), but 17 14 creation and regulation of property rights to a very different 19 12 16 plaintiff's claimed injuries are more likely to be suffered in 27 19 11 23 7 24 22 28 14 19 3 17 rutsky, 328 f3d at 1133-34. "doubtless [sapient] would prefer not misrepresentation case does not much clarify matters. following 25 the jurisdiction of a federal district court (see 17 usc 14 plaintiff's case for jurisdiction leads to unreasonable 25 28 suits. asahi metal industry co v superior court, 480 us 102, 114 (1987). rowe, 283 f supp 2d 1128 (d hawaii 2003); cody v ward, 954 f supp different as well. vindication of plaintiffs' rights must be 23 21 28 the takedown procedure are subject to liability. at issue in this 17 opinion, that jurisdiction over the japanese defendant was 2 5 litigating in his home state against explorologist regarding the 16 13 3 fdic, 828 f2d at 1444. youtube is a california company but is not video that prompted the instant dispute. explorologist owns the venue to the eastern district of pennsylvania, where a related out of the takedown notice sent to youtube in california. 2 misrepresentation statutes (see bersch v drexel firestone, inc, 519 7 case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 2 of 25 2 12 rights of plaintiff, who lived in california). 24 11 california's interest in sapient's case is "slight" (see 12 3. given his attention to "the ongoing debate between evolution 18 27 10 21 19 servers or face infringement liability itself. 17 usc sapient's only argument to the contrary is that 24 b a plaintiff is harmed in his domiciliary only (see keeton v hustler and international copyright, 48 am j comp l 384, 462 n362 (2000) difficult and novel question, the court does not abuse its factor were] given controlling weight, it would always prevent suit 19 of the controversy - weighs against jurisdiction. in this case, 26 in fact, as an alleged violation of 512(f) is not a flounders immediately once the court considers the third prong of relationship between direct and indirect copyright infringement. defendants' takedown notice is similar to the article in core-vent 5 17 10 27 10 keeton, 465 us 770; calder, 465 us 783; menken v emm, 503 f3d 1050 subject matter jurisdiction and personal jurisdiction because the subject matter jurisdiction because defendants' act of sending the http://uk.reuters.com/article/homepagecrisis/iduk119280972697._ch_. 2. the claim must be one which arises out of or results from takedown notice to an internet service provider] * * * 9 24 8 15 12 25 19 8 11 28 24 25 of wrong" as "the state where the last event necessary to make an 1 4 no c 07-2478 vrw 1 was not aimed at any california resident. thus, whether defendants 11 on may 8, 2007, plaintiff filed the instant complaint. 11 f3d at 1490. sapient has made no such showing that he would be 24 23 18 15 11 magazine, inc, 465 us 770 (1984) (holding that a new hampshire 28 25 context for which those principles were not designed. see reindl, 23 plaintiff "rel[ies] on youtube to reach thousands of audience 10 amendment and under united states copyright law. doc #1 at 24- 19 15 (noting the discrepancy between allarcom and reuters); andreas p of the video is an injury "sufficient" to establish personal on may 7, 2007, explorologist filed a complaint in the (reporting that a 15-year-old boy in australia pretended to 5 plaintiff's preference." roth, 942 f2d at 624. sapient is already 23 16 6 apply easily to the facts here. plaintiffs rarely claim an injury 43 (d conn 1997). the court has no affirmative, binding precedent networks, 19 mich j int'l l 799, 823 n84 (1998) (criticizing 23 youtube_creates_issues_debate.html (last visited dec 4, 2007); 6 19 moises naim, the youtube effect, foreign policy (jan/feb 2007), at 11 4 raise awareness, funds, reuters uk (oct 19, 2007), at 23 inconvenience may seek a change of venue."). here, by contrast, 25 24 in evaluating the reasonableness of exercising personal 19 called upon to present a defense in a distant forum." fdic, 828 22 2 third party in california. see asahi, 480 us at 116 ("considering not be "reasonable and just according to our traditional conception 7 takedown notice identifying plaintiff's post as infringing and 9 4 efficiently by the court that is already familiar with the 14 10 15 for the northern district of california case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 18 of 25 12 4 unreasonable). 1 20 11 personal jurisdiction (see 17 usc 512(c)(3)). that difference must 2 cage) (garnering over 550,000 hits as of jan 29, 2008). more 18-23; 17 usc 512(f). plaintiff alleges that his posting of assessing the overall reasonableness of jurisdiction under the 27 24 defendant explorologist is a private company registered the court acknowledges that internet users in sapient's 15 26 21 even assuming plaintiffs can demonstrate subject matter statute banning the use of lawsuits to chill free speech. see cal 27 7 21 2 the ninth circuit has established a three-part test for good faith belief that the video infringes the sender's copyrights. 2 it is true that jurisdictional difficulties should "be 18 was transmitted from outside the united states. defendants also including threats of physical harm" due to his beliefs. doc #1 at 28 14 sister state because important sovereignty concerns exist." v 5 vaughn r walker 7 12 78 (1985). jurisdiction is reasonable if "under the totality of only make a prima facie showing that personal jurisdiction exists. 18 23 would force explorologist to fight a two-front war in the united by wire or mail constitute tortious conduct in connecticut")). 26 27 19 8 additional briefing on various intricacies of british copyright jurisdiction over defendants in california. see yahoo! v la ligue 13 8 united states district chief judge 14 3 5 "brunt of the harm" test in favor of the less-restrictive 24 sapient resides in pennsylvania, not california. "because the performance and post the footage on youtube, potentially 3. exercise of jurisdiction must be reasonable. 10 5 1 15 21 25 * * * these rules apply as if a summons and complaint have been against a foreign national in a united states court."). 27 6 cases. the sender of a takedown notice may not know where the 20 19 a party to this litigation. california has little interest in the 27 free speech clause in the california constitution and a california conveniens plea before considering personal jurisdiction or subject easily resolved and that the alternative ground [of personal considerations. see core-vent, 11 f3d at 1489; roth, 942 f2d at 12 10 22 judgment that plaintiff's video is noninfringing under the first 27 4 2007). 22 14 discretion by turning directly to personal jurisdiction." ruhrgas copyright law is especially unsettled when it comes to cross-border suffered in the forum state. 10 12 8 uri geller and explorologist, claimed to be infringing * * *. 8 never sued sapient in the united states, or had they sued him in a could all be haled into court in the san francisco bay area, because it was a single communication sent from europe. in fact, 13 7 20 have jurisdiction over cross-border communications in 512(f) 16 pennsylvania. see bancroft & masters v augusta natl inc, 223 f3d case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 1 of 25 20 (6) the importance of the forum to the plaintiff's determining when specific jurisdiction may be exercised: 4 18 12 28 19 plaintiff argues that defendants' single act of sending part a 12(b)(6) motion to dismiss. doc #31 exh v. discovery is financial times (oct 8, 2006), at http://www.ft.com/cms/s/0/ the court has its doubts whether plaintiff can potential for copyright and trademark violations is enormous. see jurisdiction and purposeful direction, personal jurisdiction over conclude that the following seven factors are relevant * * *."). (last visited dec 4, 2007). conversely, copyright owners who abuse sent to youtube or any other company in silicon valley. citizens motorcycle accident in solano county. 480 us at 105-06. the court which he purposefully avails himself of the privilege of guidance. 22 case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 24 of 25 23 27 the alleged defect in subject-matter jurisdiction raises a interest in adjudicating a claim against a british corporation and 28 of fair play and substantial justice * * *." see international 3 16 7 22 1 c 2 8 case 3:07-cv-02478-vrw document 38 filed 02/04/2008 page 10 of 25 rise to jurisdiction). it is unclear how that line of precedent c1 (sept 13, 2006). politicians, social activist organizations and third, the dmca provides explicitly that internet users us at 114. sapient alleges no violations of california law. see parts manufacturer sued a japanese auto parts manufacturer in 27 sapient will suffer no actual prejudice as a result of the court's 1 youtube employees as witnesses, but he neither identifies any adjudicating the dispute - weighs against personal jurisdiction. 19 9 that particular purposeful contact of the defendant with the forum 14 11 "california has an abiding interest in protecting youtube videos 3 4 18 1 waters and allison, supra. claiming fair use, a youtube user might of litigating in california is not overwhelming, but it is a burden

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