District court in California dismisses copyright infringement action alleging Florida-based defendant unlawfully distributed plaintiff’s copyrighted adult movie over peer-to-peer file-sharing protocol for lack of personal jurisdiction, finding that defendant did not personally direct his activities to California.
Plaintiff Liberty Media Holdings, LLC creates and produces adult movies, including the motion picture “Corbin Fisher’s Down on the Farm.” Plaintiff sued Cary Tabora and Schuyler Whetstone, both non-residents of California, in federal court in the Southern District of California, alleging that that defendants infringed plaintiff’s copyright in the motion picture by unlawfully republishing and distributing the work to 840 individuals over the internet using peer-to-peer file-sharing protocol BitTorrent. Plaintiff filed a motion for default judgment against Whetstone, who failed to respond to the complaint. Defendant Tabora filed a motion to dismiss, arguing that plaintiff failed to allege sufficiently that the court had general or specific personal jurisdiction over defendants and that venue was improper. The court agreed and granted Tabora’s motion to dismiss. The court also denied plaintiff’s motion for default judgment against defendant Whetstone and, sua sponte, dismissed the case against Whetstone for lack of jurisdiction.
The court found that plaintiff failed to allege sufficiently that Tabora had minimum contacts with California under the Ninth Circuit’s test for analyzing specific personal jurisdiction. Plaintiff alleged that Tabora both distributed the copyrighted work in California and knew that his acts would cause harm in that forum. Defendant argued that he did not purposefully direct any of his activities toward California, that he did not know plaintiff’s location and that, because of the way that BitTorrent works, his participation in a BitTorrent “swarm” was insufficient to confer personal jurisdiction over him.
The court applied the three-part “Calder effects test,” from the Supreme Court’s decision in Calder v. Jones, 465 U.S. 783 (1984), to determine whether Tabora purposefully directed any activities toward the forum state. The Ninth Circuit has held that, under this test, “the defendant allegedly must have (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.” Yahoo! Inc. v. La Ligue Contre Le Reacisme Et L’Antisemitisme, 433 F.3d 1199, 1206 (9th Cir. 2006). The court found that while plaintiff easily satisfied the first element – that it allege that Tabora had committed an intentional act of copyright infringement – it failed to satisfy the second element of the test – that it allege that Tabora expressly aimed his activities toward California. A defendant’s presence on the web or passive participation in a BitTorrent “swarm” is not activity expressly aimed at any particular forum, even if it allows end users in that forum to download copyrighted materials from the defendant. Finally, plaintiff failed to allege adequately the third element of the test – that the harm within the forum was foreseeable. Although plaintiff alleged that Tabora watched the copyrighted work and that it contained a title screen that disclosed the location of the producer’s records custodian, the court found that the title screen did not suggest that the address given was the location of the copyright holder or the producer. Plaintiff’s website, which contained a terms-of-use agreement, also did not provide plaintiff’s address in California. The court rejected plaintiff’s argument that it should impute knowledge of plaintiff’s location to Tabora under a theory of “willful blindness” (that it was highly probable that plaintiff was located in California and Tabora took steps to avoid learning that fact). Because it failed to establish that Tabora expressly aimed any activities toward California or could reasonably foresee causing harm in California, plaintiff failed to allege adequately that Tabora purposefully directed his activities toward the forum state for the purpose of establishing personal jurisdiction.
The court denied plaintiff’s request for jurisdictional discovery, finding that plaintiff had provided no more than a “hunch” that it would be able to discover jurisdictionally relevant facts. The court also denied plaintiff’s motion for default judgment against Whetstone and plaintiff’s request that the court transfer the action to Florida, on the grounds that there was insufficient evidence presented of Whetstone’s domicile and plaintiff failed to demonstrate that it would be prejudiced by dismissal.