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EFF/Pavlovich 2nd Petition for Review to CA Supreme Courtin DVD-CCA v. McLaughlin, Pavlovich, et al. (Sep. 14, 2001)Appellate Court No. H021961
IN THE SUPREME COURT OF THE
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MATTHEW PAVLOVICH, |
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Supreme Court No. ____________ |
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Petitioner. |
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vs. |
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SUPERIOR COURT OF THE STATE OF
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Respondent. |
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Trial Judge: Hon. William J. Elfving |
DVD COPY CONTROL ASSOCIATION, INC., |
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Real Party in Interest. |
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PETITION FOR REVIEW AFTER DECISION BY COURT OF APPEAL,
SIXTH APPELLATE DISTRICT
ALLONN E. LEVY (Bar No. 187251)
H.S. LAW GROUP APC
210 North Fourth Street, Suite 201
San Jose, CA 95112
Telephone: (408) 295-7034
Facsimile: (408) 295-5799
Attorneys for Petitioner
Matthew Pavlovich
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES......
I. PETITION FOR REVIEW......
II. ISSUES FOR REVIEW......
III. REASONS FOR REVIEW......
IV. PROCEDURAL POSTURE......
V. FACTS......
A. Statement of the Case......
B. Jurisdictional Facts......
VI. ARGUMENT......
A. Compelling Reasons Exist for this Court to Grant Review......
1. THE EXPRESS-AIMING REQUIREMENT OF THE CALDER JURISDICTION TEST CANNOT BE SATISFIED SOLELY BY GENERAL INDUSTRY EFFECTS......
a. The Calder Jurisdiction Test......
Without a Meaningful "Express Aiming" Requirement, the Calder Test Cannot Satisfy Due Process Requirements......
2. THE STATE MAY NOT EXCERCISE SPECIFIC JURISDICTION BASED SOLELY ON FORSEEABLE EFFECTS IN THE FORUM ABSENT "SOMETHING MORE". ......
CONCLUSION......
ENDNOTES
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Bancroft & Masters Inc. v. Augusta National Inc. (9th Cir.2000),
223 F.3d 1082, ......
Burger King v. Rudzewicz, (1985), 471 U.S. 462 ......
Calaway Golf Corp. v. Royal Canadian Golf Ass'n. (C.D. Cal.2000)
2000 U.S. Dist. LEXIS 19032 ......
CoStar Group v. LoopNet (D.Md.2000) 106 F.Supp.2d 780 ......
Calder v. Jones, (1984) 465 U.S. 783 ......
Cybersell, Inc. v. Cybersell, Inc.
(9th Cir. 1997), 130 F.3d 414 ......
Gordy v. Daily News, L.P.(9th Cir. 1996), 95 F.3d 829 ......
Hanson v. Denkla (1958) 357 U.S. 235 ......
Kulko v. Superior Court (1978), 436 U.S. 84 ......
Meyers v. Bennett Law Offices (9th Cir. 2001)
2001 U.S.App.LEXIS 1539 ......
Panavision International L.P. v. Toeppen (9th Cir 1998),
141 F.3d 1316 ......
World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286 ......
STATE CASES
Edmunds v. Superior Court (1994), 24 Cal. App. 4th 221 ...... Cal. Civil Code §3426......
TO THE HONORABLE CHIEF JUSTICE OF THE CALIFORNIA
SUPREME COURT, AND THE ASSOCIATE JUSTICES OF THE
SUPREME COURT OF CALIFORNIA:
MATTHEW PAVLOVICH, defendant and petitioner, hereby appears
specially and respectfully petitions for review following the decision of the Court
of Appeal, Sixth Appellate District, (per Hon. Eugene M. Premeo, Acting P.J.),
filed on August 7, 2001. Pursuant to Cal. Rule of Court 28(e)5, Petitioner
incorporates by reference his previously granted petition for review (Cal. Supreme
Court Case S092566) previously filed with this court.
A. Whether, consistent with Due Process, California may exercise
jurisdiction on the basis that: a defendant knew or should have known that his acts
would have an effect on industries generally reputed to exist in California ("general
industry effects"), where no other California contacts exist.
B. Whether "express aiming" may be satisfied by general,
untargeted acts.
C. Whether jurisdiction is proper in instances where the defendant is
responsible for a passive, non-commercial Internet site that enables an unknown
third party to post information subsequently claimed to have caused harm in
California, without "something more."
MATTHEW PAVLOVICH finds himself petitioning this Court anew,
requesting that the Court correct what he feels is a constitutionally infirm,
precedent-setting, published opinion by the Sixth District Court of Appeals. In
oral argument, Real Party in Interest conceded that there is no available precedent
for the facts presented in this matter (see Exhibit C, informal transcript of
argument at p28:8-24) and no precedent for the analysis urged by Real Party (id.)
This case puts squarely before this Court the question of defining the "express
aiming" requirement under Calder v. Jones (1984) 465 U.S. 783.
The opinion published by the Appellate Court in this case fails to clearly
articulate its analysis of the narrow issues upon which this Court granted review
in December of 2000. Instead, the opinion denies the requested relief using broad
language that does not track the traditional three-step analysis for specific
jurisdiction (see e.g. Vons Companies, Inc. v. Seabest Foods Inc. (1996) 14
Cal.4th 434).
The Appellate Court has held for the first time that a non-resident
overseer of a non-profit organization may be hauled into Court in California based
on a single, non-commercial, passive posting of unknown authorship that is
subsequently claimed to violate trade secrets. The Court found that simply
because that defendant knew or should have known that the posted information
touches upon one or more industries reputed to exist in California, jurisdiction is
proper under Calder. There is no question that the defendant did not target, aim,
or otherwise direct activity at the plaintiff, since it is conceded that the defendant
did not know of the plaintiff's existence, or location, until after he was sued
Additionally, the Appellate Court's opinion stands to create confusion
among those who follow this area of law. Those affected include the 17 other
non-resident defendants in this suit, the unquantifiable number of defendants in
other Internet-based cases
Although the Appellate Court held that "general industry effects" are
sufficient for jurisdiction under Calder, it failed to explain why this theory was
not employed to sustain jurisdiction by the U.S. Supreme Court in Calder itself,
or in Gordy v. Daily News, L.P. (9th Cir. 1996) 95 F.3d 829 -- a question that was
specifically posed to the Court in oral arguments. In both Calder and Gordy, the
Courts could have relied upon the effects on the motion picture industry and the
music industry (respectively) within California. Instead, both the Calder and
Gordy Courts went through a complex analysis of the defendants' intentional
contacts targetting the known plaintiffs in California.
The Appellate opinion fails to clearly set forth the traditional three-step
test for specific jurisdiction and seems to incorrectly apply the test for the second
prong ("arising out of") to support its analysis of the first prong ("purposeful
availment"). As discussed more specifically below, the opinion appears to use
this mis-applied test as support for the precedent - setting holding that "express
aiming" under the "purposeful availment" prong, can be satisfied by general
industry effects (opinion at p. 14).
It is well settled that personal jurisdiction in California is restricted only
by Constitutional Due Process rights. The Court dramatically expanded
California's jurisdiction to reach an Indiana student who's non-profit group used a
passive, non-commercial web-site, that is alleged to have harmed a California
Corporation. In so doing, the Court of Appeals has created precedent-setting
constitutional error. Allowing this decision to stand necessarily adversly affects
the rights of all people by extending California's long arm statue beyond its
Constitutionally permissible limits.
This case presents facts well-suited to resolve the conflict in opinions and
settle the constitutional infirmity because Real Party has stipulated that this
Defendant did not know of the plaintiff's existence prior to the filing of the suit.
Therefore, the Indiana defendant could not have targeted the California plaintiff
when his organization's site was used to re-published the information. Thus,
since petitioner couldn't have targeted the sole plaintiff herein, the only remaining
task is to define the minimal legal touchstones of the "express aiming" requirement
and related issues of fundamental fairness.
On December 27, 1999, Real Party in Interest, DVD CCA, filed in
Respondent Court against this Petitioner, as defendant, a complaint numbered
CV786804 alleging a single cause of action - misappropriation of trade secrets
(Civ.Code §3426 et seq.). The trade secret misappropriation cause of action is
based on the allegation that Petitioner republished information that is alleged to
have been misappropriated by a third party or parties and repeatedly republished
throughout the Internet by numerous unrelated parties. Petitioner is one of some
521 named and Doe defendants who have been sued for allegedly republishing this
information on the Internet - many of whom are non-residents.
Petitioner made no general appearance in Respondent Court
Petitioner is a party beneficially interested herein. Respondent is the
Superior Court of Santa Clara County
A hearing was held by Respondent Court on August 29, 2000 at
approximately 9:00 a.m. in Department two of the Santa Clara County Superior
Court. An order denying Petitioner's motion to quash service of process for lack
of jurisdiction was served by mail on all parties on August 30, 2000
Petition for review GRANTED.
The matter is transferred to the Court of Appeal, Sixth Appellate
District, with directions to vacate its order denying mandate and to
issue an order directing respondent superior court to show cause
why the relief sought in the petition should not be granted.
On January 16, 2001, the Court of Appeals complied with this Court's
order and, on its own motion issued a stay of all proceedings in the lower Court.
On February 15, 2001, DVD CCA filed points and authorities in support of its
return - no verified answer was filed by Real Party in Interest.
On July 12, 2001, the Court of Appeals heard oral argument in this matter
(pursuant to Cal.Rule of Court 28(e)6, a true and correct copy of an unofficial
transcription of the audio recording of arguments is appended as Exhibit "B" to
this petition, hereinafter "Exhibit B").
On August 7, 2001, the Court of Appeals issued a published opinion
denying the Petition for Writ of Mandate. On August 31, 2001, on its own
motion, the Court of Appeals modified its opinion in order to lift the temporary
stay it had previously issued (pursuant to Cal.Rule of Court 28(e)6, a true and
correct copy of the written opinion and the order modifying the opinion are
appended as Exhibit "C" to this petition, hereinafter "Exhibit C").
This is an Internet re-publication
The Content Scrambling System (CSS) was created by a consortium of
Japanese companies who are not represented in this lawsuit. In "mid-December"
of 1999, Real Party in Interest, California based DVD CCA, took over the
licensing responsibilities of CSS and promptly filed this action in December of
1999
CSS is a system of ideas about how to scramble or encrypt movies that are
distributed on Digital Versitile Disks (DVDs). Many movies distributed on
DVDs are scrambled or encrypted using CSS. In order to play a CSS encrypted
movie, the consumer must first de-scramble or decrypt the movie. Conversly,
without the ability to de-scramble or decrypt a CSS encrypted movie, the
consumer cannot use his or her lawfully purchased DVD movie. As of the time
this lawsuit was filed, the entities who license CSS had not permitted CSSequipped
DVD players to be built for the Linux operating system or for other
open-source operating systems
It is not uncommon for a particular program, or set of ideas, to be
incompatible accross different platforms or operating systems. When such
incompatability is uncovered with a particular operating system, it is not
uncommon for individuals or entities to attempt to create patches or other
programs in an effort to make the program, or set of ideas, work across those
different platforms - this process is frequently called "interoperability." In order
to achieve interoperability, it is usually necessary to examine the original program
or system to uncover how it works. This process is often called "reverse
engineering." Such reverse engineering is usually legal (see e.g. Cal.Civ.Code
§3426.1(a)) and is frequently employed by individuals and companies to solve
problems involving interoperability.
DeCSS is a different system of ideas that also tells a DVD player how to
unscramble and play legally purchased movies. DeCSS never belonged to the
DVD CCA. The DVD CCA does not contend that it created, owns, or controls
the ability to license DeCSS. DeCSS was published for free over the Internet by
one or more unknown authors.
There are many competing theories as to how DeCSS was authored. The
DVD CCA believes DeCSS was formulated by reverse engineering the CSS ideas.
It suspects that Jon Johansen, a 15 year old boy in Norway, authored DeCSS by
reverse engineering CSS.
DVD CCA has never asserted that DeCSS violates any copyright, or that
the petitioner pirated or distributed movies. DVD CCA simply alleges that
numerous individuals re-published information known as DeCSS and that this
information includes CSS trade secrets which DVD CCA began to license in
December of 1999.
Matthew Pavlovich was a full time Student at Purdue University when
this action was filed in December of 1999. In addition to his studies,
PAVLOVICH volunteered his time on a group of open-source projects for the
Linux operating system. Among the open-source projects upon which
PAVLOVICH worked was the LiVID project
In or about March of 2000, four months after DVD CCA filed this case,
PAVLOVICH left purdue University to work at a small start-up company in
Texas, where he now lives with his parents. Pavlovich's income during the year
2000 was 10,400.00.
The significant reasons that compelled this Court to grant review in
December of 2000, have only been magnified by the Appellate Court's, published
opinion. Instead of creating uniformity among internet effects-based jurisdiction
cases, and settling the questions identified by this Court in its previous grant of
review, the opinion published by the Appellate Court serves only to create
additional ambiguity and increase the need for this Court's intervention.
As the number of Internet related disputes grows world-wide, the question
of "express aiming" under Calder will continually resurface. The Appellate
opinion will serve only to confuse and confound as Courts and practitioners
compare this opinion with that of J.D.O. v. Superior Court, supra, Panavision,
supra, and Calder itself.
In its analysis, the Appellate Court relies upon PAVLVOVICH's alleged
knowledge that Calfiornia "is commonly known as the center of the motion
picture industry, and that the computer industry holds a commanding presence in
the state." Yet, the Court fails to explain how or why this evidence satisfies the
"express-aiming" requirement when REAL PARTY is not a member of either
industry and where PAVLOVICH never knew of DVD CCA's existence until
after the filing of the lawsuit.
The Appellate Court's opinion also seems to mis-apply the test for
purposeful availament. The tests for analyzing minimum contacts in specific
jurisdiction cases are well settled:
specific jurisdiction is determined under a three-part test: (1) The
nonresident defendant must do some act or consummate some
transaction with the forum or perform some act by which he
purposefully avails himself of the privilege of conducting activities
in the forum, thereby invoking the benefits and protections of its
laws; (2) the claim must be one which arises out of or results from
the defendant's forum-related activities; and (3) exercise of
jurisdiction must be reasonable.
(Jewish Defense Organization Inc. v. Superior Court (1999) 72 Cal.App.4th
1045, 1054, citing Panavision Intern., L.P. v. Toeppen 141 F.3d 1316, 1320 (9th
Cir. 1998)).
Rather than providing clear analysis of each of the tests, the opinion simply
highlights verbiage from each of the different tests without providing a clear
framework. In doing so, the Court mis-applies the "nexus test" which states that
a Court properly focuses "on the relationship among the defendant, the forum,
and the litigation" (exhibit C at p.14). The Court incorrectly applies this language
which is properly used to explain traditional minimum contacts analysis and
generally relates to the second prong of the specific jurisdiction test (see Vons v.
Seabest at pp.460-465). Although no Court has clearly defined a test for express
aiming there is no support in any of the effects cases suggesting that express
aimining may be satisfied through this "nexus test" analysis. Traditionally,
Courts have applied the "nexus test" only after actual contacts are found or
purposeful availment has been established.
Under Calder, to establish purposeful availment, a Court must find 1)
intentional activity by the defendant 2) that has been expressly aimed or targeted
3) along with a forseeable expectation of harm in the forum state (see J.D.O. and
Calder generally). Thus if there is no intentional act, or there is no "express
aiming" or targeting, then the Court never reaches the "nexus test." There is no
known support for the proposition that the "nexus test" can also satisfy the
express aiming requirement of prong one (purposeful availment) in a Calder jurisdiction
case.
In lieu of analysis, the Court provides unprecedented, sweeping language
about Internet-based jurisdiction:
Instant access provided by the Internet is the functional equivalent
of personal presence . . . In a sense, therefore, the reach of the
Internet is also the reach of the extension of the poster's presence.
(Exhibit C, opinion at p.10).
The Court of Appeals makes it clear that it feels that information posted on the
Internet instantly subjects individuals to personal jurisdiction world-wide.
However, this position stands in stark contrast to accepted jurisdictional
jurispurdence (see e.g. J.D.O. and Cybersell).
In 1984, the U.S. Supreme Court approved the use of a new basis for
jurisdiction Calder v. Jones, 465 U.S. 783 (1984). In its landmark decision, the
Court found that in cases where there was insufficient contact for a finding of
Purposeful avialment under traditional analysis, Courts could turn to a different
analysis. The new analysis focused on far more limited contacts with the forum
state, but included the added requirements of intentional activity that is expressly
aimed or targeted.
The Supreme Court held that jurisdiction may be found, within the
confines of due process, where certain intentional acts are "expressly aimed", and
cause foreseeable harm in the forum state. Subsequent Courts have noted that due
process provisions and Calder require "something more" than simply foreseeable
effects in the forum state (Panavision Int'l, L.P. v. Toeppen, (9th Cir. 1998) 141
F.3d 1316, 1322, but have not defined what the "something more" is and have not
defined the boundaries of "express aiming" (see also section VI, A, 2 infra).
Although itself not an Internet case, the Calder case was an information republication
case. As such, the Calder test has, in varying degrees, become the
primary basis for jurisdictional analysis in Internet cases. The importance of the
Calder test in Internet cases arises out of the high-speed, transient, nature of
information on the Internet and the effects brought about by that information. In
applying the Calder holding to the Internet arena, the boundaries of the Calder
effects test itself, as well as the specific "express aiming" requirement cry out for
definition and clarification. Definition and clarification not yet provided by the
published opinion here. Without such definition, California Courts and litigants
will continue to struggle with jurisdictional questions resulting in a lack of
uniformity among similar Court cases and in confusion by industry participants.
. . .cases have struggled somewhat with Calder's
import, recognizing that the case cannot stand for
the broad proposition that a foreign act with
foreseeable effects in the forum state always gives
rise to specific jurisdiction. We have said that there
must be something more, but have not spelled out
what that "something more" must be. See
Panavision, 141 F.3d at 1322.
Goehring v. Superior Court (1998), 62 Cal. App. 4th 894 ......
Jewish Defense Organization Inc. v. Superior Court
(1999), 72 Cal. App. 3d 1427 ......
Vons Companies v. Seabest Foods Inc.
(1996) 14
Cal.4th 434 ......
Wolf v. City of Alexandria (1990), 217
Cal. App. 3d
541 ......STATUTES
Cal. Code of Civil Procedure §418.10......
Cal. Rule of Court 28 2,9,10
I.
PETITION FOR REVIEW
II.
ISSUES PRESENTED FOR REVIEW
III.
REASONS FOR REVIEW
IV.
PROCEDURAL POSTURE
V.
FACTSA. Statement of the Case
B. Jurisdictional Facts
VI.
ARGUMENTA. Compelling Reasons Exist for this Court to Grant Review
1. THE EXPRESS-AIMING REQUIREMENT OF THE CALDER
JURISDICTION TEST CANNOT BE SATISFIED SOLELY BY
GENERAL INDUSTRY EFFECTS
a. The Calder Jurisdiction Test
Bancroft & Masters Inc. v. Augusta National Inc. (9th Cir.2000) 223 f.3d 1082 at 1087
While the case at bar presents unique facts, in as much as it is clear that the
petitioner couldn't have targeted the plaintiff
In the Internet jurisdiction cases of Panavision International L.P. v.
Toeppen (9th Cir 1998) 141 F.3d 1316, the Court found jurisdiction based upon the
defendant's intentional targeting of the known plaintiff
Numerous courts have cited and followed the Bancroft decision. In dismissing the action for lack of jurisdiction, the Court in Callaway Golf corp. v. Royal Canadian Golf Ass'n., (C.D. Cal. 2000) 2000 U.S. Dist. LEXIS 19032 followed the Bancroft holding:
plaintiff does not adduce facts sufficient to establish that defendant knew or should have known plaintiff was a resident of California, had its principal place of business in California, or otherwise would feel the brunt of the effects of defendant's actions in California." . . . Merely knowing a corporate defendant might be located in California does not fulfill the effects test (citing Bancroft).
Id. at p.12
Following the Bancroft decision, some trial Courts have held that because a
defendant did not know he was targetting a particular California Plaintiff, the
Court in turn could not excercise jurisdiction over that defendant. Examples
include Callaway, supra and CoStar Group v. LoopNet 106 F.Supp.2d 780
(D.Md. 2000). Callaway explicitly found no jurisdiction despite the fact that the
defendant had targeted activity at California generally
b. Without a Meaningful "Express Aiming" Requirement, the Calder Test Cannot Satisfy Due Process Requirements.
The Appellate decision suggests, mere knowledge that information relates to an industry that exists in a forum together with an alleged harm to an unrelated plaintiff within that forum is sufficient to yield jurisdiction (Exhibit C, opinion at p.8). Petitioner contends that such attendant or random contact cannot satisfy Due Process. It is well settled that contacts which are considered "random, fortuitous or attendant" will not support personal jurisdiction consistent with the Due Process clause (Burger King v. Rudzewicz, (1985) 471 U.S. 462, 475-476, 485).
If all that were necessary to satisfty the Calder test was "general industry effects," then the U.S. Supreme Court in Calder itself would have dramatically curtailed its analysis. In Calder, the allegedly defamatory news story involved then well-known actress Shirley Jones. The High Court could have easily and simply concluded that National Enquirer writers knew the story involved the motion picture industry, knew that the industry existed in California, and therefore were subject to suit in California when Jones alleged harm. It did not. Instead, the Calder Court embarked on careful analysis noting that the defendant knew the identity of the plaintiff, knew the plaintiff lived in California and knew that the information it published would likely have an adverse effect on that particular plaintiff (Calder at 789-790). Calder concluded that California courts had personal jurisdiction over the defendants in Florida because defendants' "intentional conduct in Florida [was] calculated to cause injury to respondent in California" (Calder at 791).
It is the purposeful, knowing, targeting of forum residents by the nonforum defendant, together with the knowledge that the act is likely to result in harm within that forum, that provides the "act" of purposeful availment envisioned in Hanson v. Denkla (1958) 357 U.S. 235, 253 and other jurisdiction cases.
By definition, one can't "expressly" target or aim activity at an industry since an industry is an amorphous non-entity. By enlarging the target at which the cross-hairs of a non-resident's "express aiming" must be centered to encompass an entire industry (or multiple industries), the Appellate opinion has concurrently reduced the required level of intent, purpose, and forseeability envisioned in Calder. It is a heightened level of intent, purpose, and forseeability that forms the underpinnings of the Calder test for purposeful availment. Enlarging the target to include an entire industry is the practical equivalent of the "mere untargeted negligence" that the Calder Court itself identified would not provide a basis for jurisdiction under its test (Calder at 789-790).
When an individual performs an intentional act that is truly targeted, it
must, by definition, be targeted at something. It may be targeted at a person, or an
entity, but not at an idea. An "industry" isn't a tangible thing that a person can
target in the manner envisioned by Courts in Calder, Panavision, J.D.O.,
Bancroft, and Calloway
2. THE STATE MAY NOT EXCERCISE SPECIFIC JURISDICTION BASED SOLELY ON FORSEEABLE EFFECTS IN THE FORUM ABSENT "SOMETHING MORE".
The Court Below goes to great lengths to demonstrate that petitioner "knew that California is commonly known as the center of the movie industry, and knew that Silicon Valley in California is one of the top three technology 'hot spots' in the Country" (Exhibit C, opinion at 8-10). However, even assuming arguendo that the Court's conclusions as to petitioner's knowledge are correct, this analysis incorrectly focuses only on forseeability. The Appellate opinion notes "California's long-arm statute looks at the effects, not at the system that delivered and produced those effects." (Exhibit C, opinion at p.11).
However, under Calder and its progeny, Courts are compelled to look at
the delivery of the effects. While there is no question that forseeability
In Cybersell v. Cybersell (9th Cir. 1997) 130 F.3d 414, the Court noted that
providing information accross the Internet, like placing a product into the stream
of commerce, may cause forseeable effects world-wide. However, without "more"
it will not satisfy purposeful availment (id. at 418; see also Panavision v. Toeppen
(9th Cir. 1998) 141 F.3d 1316 at 1322). Other courts agree noting that forseeable
effects in the forum will not support jurisdiction under Calder without
"something more
By using the plaintiff's intellectual property, the defendant in Cybersell v. Cybersell, was surely aware that its Internet conduct could have had an effect on any number of industries within the forum state. But there, the Cybersell court denied jurisdiction. To permit the test to hinge upon forseeability of harm to an industry would mean that any publisher of information must screen the content of his publication to determine what possible industries might be involved and must expect to be sued in any jurisdiction where such industries exist - such a rule
would simply be unworkable and would be violative of due process. In another information publication case, Gordy v. Daily News (9th Cir. 1996) 95 F.3d 829, 833, the Court again found jurisdiction under the Calder test based upon the express targeting of the plaintiff who was a forum resident (see also Bancroft at 1088 citing Gordy). There, the plaintiff was the founder of Motown Records. In finding jurisdiction, the Court properly focused on the defendant's targeting of that known California Plaintiff, and did not even address the fact that the plaintiff was also a member of an industry reputed to exist in California. If mere knowledge that the music industry was "centered" in California were sufficient under Calder, it is unlikely that the Gordy Court would have performed an analysis based upon the defendant's knowledge that the plaintiff lived in California and was targeted there (id.)
By emasculating the express aiming requirement, and focusing primarily, if not exclusively on forseeability, the Appellate Court's opinion impermissibly deprives petitioner of his Due Process rights, and simultaneously creates new precedent that stands to affect all potential litigants. Additionally by standing in contrast to traditional authority on Internet Jurisdiction, the opinion stands to create confusion, thereby depriving deprive litigants of the predictability that is so vital in jurisdictional issues.
VII.
CONCLUSION
The import of the Appellate opinion is to dramatically alter the terrain of jurisdictional jurisprudence. Followed to its logical conclusion, the opinion creates nearly limitless California jurisdiction over cases with subject matters involving movies, computers, telecommunications, music, biotechnology and nearly every other California industry from oranges to surfing. Such a severe alteration to the jurisdictional landscape compels review by this High Court.
For the reasons stated herein, petitioner respectfully requests this court grant review to determine the issues presented above.
DATED: September 14, 2001
H.S. LAW GROUP APC
By:
ALLONN E. LEVY
Attorneys for Defendant
MATTHEW PAVLOVICH
ENDNOTES
1
Real Party in Interest has conceded that petitioner has not targeted a known
California Party by conceding that Petitioner did not know the identity of the
only plaintiff in this case (see Opposition to Petition for Writ of Mandate,
hereinafter "OPP," generally and at pp.11-12).
[back to main text]
2
As indicated previously, because of the wide net cast by this corporate plaintiff
ensnaring only individual web publishers with no corporate affiliation, mainstream
and industry-specific press have closely followed and covered this case and the
Courts' decisions. As such, the Courts' actions have a vast audience and
necessarily shape the manner in which industry and individuals make future
decisions regarding their interaction over the Internet. The current published
opinion stands to dramatically chill on-line speech, commerce, and scholarly
discourse through its threat of world-wide jurisdiction based on the content of
anonymous posts.
[back to main text]
3
Instead, the Court simply re-stated the correct observation that Bancroft &
Masters Inc. v. Augusta Nat. Inc. (9th Cir. 2000) 223 F.3d 1082 did not state that
"targeting the wrongful conduct at a plaintiff whom the defendant knows to be a
resident of the forum state is the only way to satisfy Calder's 'express aiming'
requirement" (Opinion at p.13). Indeed, Bancroft could not have made such an
observation since those facts were not before it.
[back to main text]
4
References to the separately bound Appendix of Exhibits, filed concurrently with
petitioner's petition for writ of mandate in the Appellate Court will be denoted as
"APP"; see complaint included as exhibit A of the separately bound appendix of
exhibits filed with the Appellate Court.
[back to main text]
5 A true and correct copy of Petitioner's Proof of Service, Notice of Motion,
Points and Authorities in Support of Motion, Declaration of Allonn E. Levy in
support of Motion, and Declaration of Matthew Pavlovich in Support of Motion
to Quash Service of Process is included as Exhibit B of the separately bound
appendix of exhibits filed with the Appellate Court.
[back to main text]
6 A true and correct copy of Real Party in Interest's opposing papers, which
include Points and Authorities in Opposition to Motion to Quash Service and the
Declaration of Jonathan S. Shapiro in Opposition to Motion to Quash Service, is
included as Exhibit C of the separately bound appendix of exhibits filed with the
Appellate Court.
[back to main text]
7 A true and correct copy of Petitioner's Reply Brief in Support of Motion,
Reply declaration of Allonn E. Levy in Support of Motion, and Objections to
Evidence Submitted by Plaintiff is included as Exhibit D of the separately bound
appendix of exhibits filed with the Appellate Court.
[back to main text]
8 Santa Clara County Superior Court Case No. CV786804.
[back to main text]
9 A true and correct copy of the court's order is included as Exhibit E of the
separately bound appendix of exhibits filed with the Appellate Court.
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10
In the underlying case, the parties have not disputed the fact that the computer
code DeCSS is speech for purposes of First Amendment analysis.
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11
"APP" stands for the Appendix to Exhibits filed in the Appellate Court. For the
Court's convenience, all references to exhibits will include both the APP page
number, followed by the original document reference. For example APP pp.2-21;
Complaint pp1-20.
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12
Numerous forms of open source code have been around for decades, including the
popular Linux and FreeBSD operating systems, the Apache server and others.
Many open source systems are protected by strict and rigorous licenses such as
the GPL, Mozilla License (From Sun/Netscape), Apple Source License (Apple),
and IBM's Public License. Many publically held companies devote some or all of
their resources to open source projects, including VA Linux, RedHat, IBM, Corel,
Sun Microsystems, Compaq and Dell. IBM alone has committed 5 Billion dollars
in research and development into the open source Linux operating system which is
seen as the only true competitor to Microsoft's Windows operating system.
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13
The LiVID project was a loose association of people, whom PAVLOVICH does
not personally know (APP.p.170-171;exhibit A at pp.17-18), nor does he know
where those individuals are domiciled (APP.p.172;exhibit A at pp.19:19-21), nor
who hosts the LiVid list (APP.pp.173-174;exhibit A at 21-22). The goal of the
LiVid group was to create better support for video playback (APP.p.175;exhibit A
at 23:10-15), not to harm any party in California. LiVID came into existence long
before DeCSS began appearing on the Internet.
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14
(See Petitioner's Reply Papers attached as Exhibit D to the separately bound
Appendix of Exhibits, hereinafter Exhibit D at APP.pp174-175; Deposition of
PAVLOVICH at pp.22-23).
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15
Real Party in Interest has conceded that petitioner has not targeted a known
California Party by conceding that Petitioner did not know the identity of the
only plaintiff in this case (see Opposition to Petition for Writ of Mandate,
hereinafter "OPP," generally and at pp.11-12). DVD CCA argues that the lack of
express aiming directed at DVD CCA is irrelevant to the jurisdictional analysis
(OPP at p.12) and that jurisdiction may be found solely based upon effects on the
computer and movie industries which are reputed to exist in California (OPP at
p.11-13).
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16
The Bancroft Court supplied some clarification on the issue of "express aiming"
but could not provide actual boundaries demonstrating facts that do not satisfy the
"express aiming" requirement since those facts were not properly before the
Bancroft Court . We know from Bancroft that the express aiming
requirement is satisfied when the defendant is alleged to have engaged
in wrongful conduct targeted at a plaintiff whom the defendant knows
to be a resident of the forum state.
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17 In Goehring v. Superior Court (1998) 62 Cal.App.4th 894, 909 the Court noted
the confusion involved in the "express aiming" requirement and the Calder test
generally. That Court handled the ambiguities by analyzing the level of intent on
the part of the non-resident defendant in "expressly aiming" contact with the
resident plaintiff, but did not clarify the boundaries of Calder.
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18 Also citing Wolf v. City of Alexandria (1990) 217 Cal.App.3d 541; Kulko v.
Superior Court (1978) 436 U.S. 84, 94-95.
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19
The defendant in Panavision sent the plaintiff a letter attempting to extort money.
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20
J.D.O. found no effects based jurisdiction by differentiating its facts from
Panavision. The J.D.O. court noted that in Panavision defendant's conduct "as he
knew it likely would" had the effect of injuring the defendant in California" (id. at
1059). By Contrast, J.D.O. did not find the same intentional, express targeting of
the plaintiff by the defendant and therefore found no jurisdiction under Calder.
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21
Both the seminal "effects" case of Calder and the Panavision case that applied the
effects test to Internet contacts, discuss the existence of an industry within the
forum as additional evidence that a defendant expressly aimed or targeted a
California resident. However, neither case, nor any other reviewing case known to
Petitioner, suggests that such "general industry contacts" can be a basis for
jurisdiction exclusive of directed, express aiming.
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22
See also Meyers v. Bennett Law Offices (9th Cir. 2001) 2001 U.S. App.LEXIS
1539, also following Bancroft's analysis.
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23
"[T]he forseeability that is critical to due process analysis . . . is that the
defendant's conduct and connection with the forum . . . are such that he should
reasonably anticipate being hauled into court there." (Burger King at 474; World-
Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 295).
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24
The Bancroft court reviewed a slew of cases noting that in each instance, the
finding of jurisdiction using the "effects test" was based on a specific act or acts
targeting a known party within the forum state such that the "forum effect of a
foreign act 'was not only foreseeable, it was contemplated and bargained for'"
(Bancroft & Masters Inc. v. Augusta National Inc. (9th Cir.2000) 223 f.3d
1082 at 1087-1088, citations omitted; emphasis added).
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[end]
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