The Honorable Denny Chin, who was at the time of argument

a United States District Judge for the Southern District of NewYork, sitting by designation, is now a member of this Court.

09-1739-cvPenguin Group (USA) Inc., v. American Buddha

1UNITED STATES COURT OF APPEALS2FOR THE SECOND CIRCUIT3August Term, 20094(Argued: January 7, 2010Question Certified: June 15, 2010)5Docket No. 09-1739-cv6-------------------------------------7PENGUIN GROUP (USA) INC.,8Plaintiff-Appellant,9- v -10AMERICAN BUDDHA,11Defendant-Appellee.12-------------------------------------13Before:SACK, KATZMANN, and CHIN, Circuit Judges.

14Appeal from an order of the United States District15Court for the Southern District of New York (Gerard E. Lynch,16Judge) granting the defendant's motion to dismiss the plaintiff's17copyright infringement action for lack of personal jurisdiction.18Jurisdiction over the defendant, American Buddha, was asserted19under a provision of New York's Long-Arm Statute. Because20deciding whether the plaintiff's alleged injury resulting from21alleged copyright infringement with respect to material uploaded22to the Internet out-of-state and made available from servers23located out-of-state occurred in New York for purposes of

21applying section 302(a)(3)(ii) requires the resolution of an2undecided question of New York law, we certify that question to3the New York Court of Appeals.4RICHARD DANNAY, Cowan Liebowitz &5Latman, P.C. (Thomas Kjellberg, of6counsel), New York, NY, for Plaintiff-7Appellant.8CHARLES CARREON, Online Media Law, PLLC,9Tucson, AZ, for Defendant-Appellee.10Sack, Circuit Judge:11Plaintiff Penguin Group (USA) ("Penguin") appeals from12an order of the United States District Court for the Southern13District of New York (Gerard E. Lynch, Judge) granting defendant14American Buddha's motion pursuant to Federal Rule of Civil15Procedure 12(b)(2) to dismiss Penguin's copyright infringement16action for lack of personal jurisdiction. Penguin Group (USA)17Inc. v. Am. Buddha, No. 09 Civ. 528, 2009 WL 1069158, 2009 U.S.18Dist. LEXIS 34032 (S.D.N.Y. Apr. 21, 2009). Penguin alleges in19its complaint that American Buddha unlawfully uploaded to servers20an unauthorized copy of four of Penguin's copyrighted works for21downloading, via the Internet and free of charge, by any of the2250,000 members of what American Buddha terms its "online23library."24The sole issue on appeal is whether there is a basis25for personal jurisdiction over American Buddha in New York26enabling the district court to decide this dispute. Penguin27asserted that the court has such jurisdiction under a provision28of New York's Long-Arm Statute, N.Y. C.P.L.R. § 302(a)(3)(ii),

31that allows for jurisdiction over an out-of-state defendant with2no contacts with New York, if, inter alia, the defendant is3alleged to have committed a tortious act outside the State that4caused, and reasonably should have been expected by the putative5defendant to cause, injury to a person or property within the6State.7The district court recognized two competing lines of8authority interpreting section 302(a)(3)(ii), one that views the9situs of injury as the location of the infringing conduct and one10that views the situs of injury as the location of the plaintiff11and, in some cases, the location of its intellectual property.12Relying on the first line of authority and rejecting the second,13the court concluded that the situs of the injury allegedly14resulting from the asserted infringement of Penguin's copyrights15would be where the book was electronically copied -- presumably16in Arizona or Oregon, where American Buddha and its computer17servers were located -- and not New York, where Penguin was18headquartered. Accordingly, the court dismissed the case for19failure adequately to plead injury in New York. Penguin, 2009 WL201069158, at *4, 2009 U.S. Dist. LEXIS 34032, at *13.21Determining the situs of injury for the purposes of22N.Y. C.P.L.R. § 302(a)(3)(ii) in a copyright case requires23analysis of state law and policy considerations that this Court24is ill-suited to make. Specifically, it requires a25determination of how the New York State Legislature intended to