Court of Appeal No.

HO21961

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA MATTHEW PAVLOVICH,' Petitioner
v,

Supreme Court No. S100809

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA,

Trial Judge: Hon. William J. Elfving Santa Clara County Superior Court Trial Court CaseNo. CV 786804

Respondent.
DVD COpy CONTROL ASSOCIA nON, INC.,
Real Party in, Interest

REAL PARTY IN INTEREST DVD COpy CONTROL ASSOCIATION'S BRIEF ON THE MERITS

201 RedwoodShoresParkway RedwoodShores,CA 94065 Telephone:(650) 802-3000

CHRISTOPHER J. COX (Bar No. 151650) WElL, GOTSHAL & MANGES LLP Silicon Valley Office

ROBERT G. SUGARMAN JEFFREYL. KESSLER GEOFFREYD. BERMAN New York, NY 10153 Telephone: (212) 310-8000 Attorneysfor Real Party in InterestDVD Copy Control Association,Inc.
WElL, GOTSHAL 767 Fifth Avenue & MANGES LLP

NYI :\I0t262~I.~27J

8.0003

TABLE OF CONTENTS Page
PRELIMINARY STATEMENT ..

2
9 14 15 15

STATEMENT OF FACTS

PROCEDURAL

ARGUMENT I. The Court Of Appeal Properly Ruled That Pavlovich Is SubjectTo The JurisdictionOf The California Courts
2.
Pavlovich 1.

HISTORY

Pavlovich's
Pavlovich's Purposely

Actions
Actions Availed

Meet The "Expressly
Meet Himself The Intent Of The Prong

Aiming"
Of The

Prong
This

17 19

A.

Privileges

Of

Effects

Test

State

3.

Pavlovich's
Of The

Effects

Conduct Caused Harnl That He Knew Or Reasonably
Test

20

Should

Have

Known

Was

Likely

To

Cause

Harnl

In

California

B The Court Of Appeal's Decision Is ConsistentWith
The DictatesOf Calder

n
m.

The Claims Arise From Pavlovich's Forum-Related Activity JurisdictionHere ComportsWith Notions Of Fair Play And SubstantialJustice

31 32
36

CONCLUSION

TABLE

OFAUTHORInES

FEDERAL CASES
300 Co. v. PoP/oPSoftware,Inc., 49 U.S.P.Q.2d 1469(N.D. CaI. 1998) Ballard v. Savage,65 F.3d 1495(9th Cir. 1995) Bancroft & Masters,Inc. v. AugustaNational, Inc.,
223 F.3d 1082 (9th Cir. 2000)

21,22
.31

,

7,24,25,26 22

CableNewsNetwork v. GoSMS.Com, U.S.P.Q.2d 1959(S.D.N.Y. 2000) 56 Calder v. Jones,465 U.S. 783 (1984) caOowayGolf Corp. v. Royal CanadianGolf Association,
125 F. Supp. 2d 1194 (C.D.Ca!. 2000) ,

2, 16, 17?, 20, 25

23,26 .7,21,23,33 31

Core-VentCorp. v. Nobel Industrial, 1 F.3d 1482(9th Cir. 1993) Cybersell/nc. \I. Cybersell,/nc.,'130 F.3d 415 (9th Cir. 1997) Gordy, Gordyv. Dai/yNews, L.P. (9th Cir. 1996)95 F.3d 819 Gutie"ez v. Givens, 1 F. Supp.2d 1077(S.D.Ca. 1998) Hansonv. Denck/at357 U.S. 235 (1958) McGeev. International Life InsuranceCo., 355 U.S. 220 (1957)

,

24

.18,21,32 Panavisionlnter'l, L.P. v. Toeppen,141F.3d 1316(9thCir. 1998) PanavisionL.P. v. Toeppen, F. Supp.616 (CD. Call996), 938 oD'd, 141F.3d 1316, 1321(9th Cir. 1998)
Universal Studios, Inc. v. Corley, 273 F .3d 429 (2nd. Cir. 200 1)

,

8,

7

16,34

13
,13
Y. 2000)

UniversalStudios,Inc. v. Reimerdes,

11

F.

Supp.

2d

294

NY 1:\ I 0I2627\06\N7CZ06!

.JXx:\42711.0003

11

(SD.N.

TABLE OF AUTHORITIES STATE CASES
Burger King v. Rudzewicz, 471 U.S. 462, 473-74 (1985)

Cassier Mining Corp.v. Superior Court,(1998)66 Ca!.App.4th 550
City and County of San Francisco v. Sainez, (Ct. App. 1st Dist. 2000) 77 Cal.App. 4th 1302, 1313. Edmunds Superior Court, (1994) 24 Cat. App. 4th 221 v. Fisher Governor Co. v. Superior Courl, 53 Cal. 2d 222 In re Marriage of Flaherty, (1992) 31 Cal. 3d 637 ... JewishDefenseOrganization,Inc. v. Superior Court, 72 Cat. App. 4th 1045(1999) Pavlovichv. Superior Court, 109cat. Rptr. 2d 909 (2001) .. Quattronev. Superior Court, 44 Ca!. App. 3d296 (1975)
Rodriguez v. Solis, (5th Dist. 1992)

24
18

33,3S 18 31 2 17 18

Cat. App. 4th 495

VonsCompanies, Inc. v. Seabest Foods,Inc., (1996) 14 Ca!. 4th 434 cert. denied522 U.S. 808

16, 24

NYI:\ I ~27I4)6\N7C1JI6!;0CK:\427I'.OOO3

111

By andthrough its undersigned counsel,Real Party in Interest OVD Copy Control Association,Inc. ("OVD CCA") herebyresponds to PetitionerMatthew Pavlovich's (the "Petitioner" or "Pavlovich") Brief on
the Merits ("Pet.Br .").

PRELIMINARY STATEMENT The decisionof the Court of Appeal sustainingthe jurisdiction of the California courts over PetitionerMatthew Pavlovich follows and applieswell settledprinciples laid down by the SupremeCourt of the United Statesandthe courtsof this state. In particular,the Court of Appeal properly appliedthe "effects test" articulatedby the United States Supreme Court seventeen yearsago in Calder v. Jones Appeal correctly noted [T]he fact that Pavlovich usedthe new mediumof the Internet to inflict harm on a California plaintiff, insteadof the print mediathat was usedin Calder, is irrelevant. It shouldnot matterwhetherthe delivery systemusedto inflict the injury is the traditional delivery systemof air, land, or sea transportation, the cutting-edgetechnologicalsystemof or cyberspace, satellites,cable,and electro-magnetic waves. California's long- arm statutelooks at the effects,not at the systemthat deliveredand producedthoseeffects.
Pavlovich v. Superior Court (hereinafter, the ""Appellate Opinion"), 109

As the Court of

Cal.Rptr.2d909,914 (2001).

465 U.S. 783 (1984).

2

In his attemptto convincethis Court to departfrom theselong established principles, Petitioner: 1 Misreadsand mischaracterizes decisionin Calder; the Selectivelyquotesand fundamentallymisinterpretsthe

,
3.

decisionsof this Court, lower California courtsand FederalCourts;and Asserts,for the first time andwithout any record

support,that "Matt Pavlovich himself did not post the codeon the LiVid site or anywhereelse," Pet.Br.,p. 10, and suggests, also for the first time andwithout record suppo~ that his involvementin the misappropriationof DVD/CCA ' s trade secrets was minimal In fac~ Pavlovi,:h's role in the misappropriationof DVD/CCA's trade secrets posting ofDeCSS on the Interner was neither by minimal, innocentnor inadvertent. Pavlovich is a leaderin the "open source"movement,which generallyseeksto makematerialavailableover the Internet for free. In particular,Pavlovich foundedand operated group a called the "LiVid Video Project," a key purposeof which, in Pavlovich's
2 This action wascommenced orderto stopthetheftofDVD in

CCA's

tradesecrets that are utilized in an encryption-based copy protectionsystem known asthe ContentScrambleSystem("CSS"). CSSis employedto encryptand therebyprotectthe copyrightedmotion picturescontainedon Digital VersableDiscs ("DVDs"). Pavlovich and the other defendants in the underlying action developedand/or disseminated computerprogramson the Internet,including a programcalled DeCSS,that misappropriate DVD CCA's tradesecretsand are designed defeatthe CSSencryption to technology. Suchactionsfacilitate the wholesaleinfringementof cfJpyrighted motion picturesby individuals worldwide. 3

own words "was to aid in the development an unlicensedsystemfor of DVD playbackand copying.,,3 As statedby the Court of Appeal, Pavlovich cannotclaim innocentintent. As a computer engineeringstudent,a technicianin the computerand telecommunications industry, a founder and presidentof a technologystart-upcompany,and a leaderin the "open source"movement,Pavlovichknew, or shouldhave known, that by posting the misappropriated information on the Internet,he was making the information availableto a wide rangeof Internetusersand consumers throughoutthe Internet world, including usersandconsumers California. in Appellate Opinion at 916. In disseminating DeCSSon the Internet, Pavlovich engaged in purposeful,unlawful conductdirectedat three substantialindustriesin the Stateof California - the motion picture industry, the computerindustry andthe consumerelectronicsindustry. He did so knowing that his actions would adverselyaffect thesebusiness enterprises that his actionshad and the effect of circumventingtrade secretprotectionsestablished and for by the benefit of thosebusiness enterprises.Without denyingany of these facts,Pavlovichseeksto escape jurisdiction of this court by arguingthat the
3 Appellate Opinionat 912. In

a message posted October1, 1999, on

Pavlovichstated: "I havebeenlimiting my work in other projectsand really changinggearsfor LiVid." And, on November 10, 1999Pavlovich posteda message entitled: "[LiVid-dev] More legal trouble" in which he stated: "It seems me that at leasttwo things needto happenASAP: # I to Move the mailing list and CVS site to a friendly country, where lawyers like thesehave limited (and perhapsno) ability to harassmailing list hosts,

4

he did not know the preciseidentity of the plaintiff, and that his acts targeted generalindustriesratherthan a specificpersonor entity. This argumentis untenableunderthe California long arm statuteand relatedcase
iW.

Pavlovich identifies threeissuesfor review by this Court: (i) whetherjurisdiction in California is properunderthe Calder effectstest "a defendant knew or shouldhaveknown that his actswould have an effect on industriesgenerallyreputedto exist in California" (Pet.Br.,p. 1); (ii) whetherthe 'expressaiming' requirementof the Calder effectstest may be satisfiedby "general,untargeted acts" (Id.); and (iii) whetherjurisdiction
in California is proper under the I Calder effects test where a defendant "is

responsible a passive,non-commercialwebsitethat enablesan unknown for third party to post infonnation subsequently claimedto have caused hanD in California, without 'somethingmore.'" (Id) Pavlovich suggests the answerto eachof thesequestions that is no andthat the Court of Appeal's decisionshouldthereforebe overturned. In fact, however,the Court of Appeal's decisionshouldbe afflrIned regardless the answers the questions of to posedby Pavlovich, With regardto the first question,Pavlovich aimedhis conduct at particular,known, California parties,not just at "industries generally CVS contributorsandthe like. c.
Attached to the Shapiro Decl. as Exhibit

."

~

reputedto exist in California." He actedwith the knowledgethat his conductwould harm the sole entity licensingCSS(DVD CCA, a California
domiciliary), its California licensees - computerhardwareand software

companies and the California-based -motion picture companies that

Thus,whetherjurisdiction would be proper over a defendant who knew or shouldhaveknown Qnlythat his conductwould havean effect on "industries generallyreputedto exist in California" is of no relevancehere. Moreover,evenif that questionwere relevant,the answer would be yes. The Calder effectstest is satisfied,andjurisdiction is
therefore appropriate, so long :asthe defendant engaged in intentional

conductaimedill ~ furnm~,

knowingthatsuchconduct likely to is

causehanDto forum residents. Thoseresidentsmay be specific individuals or entities,or generalindustries.To rule otherwisewould permit out of statedefendants target broad-based to California industries- like the citrus industry,the softwareindustry, or the movie industry without fear of being haled into court heresimply because they did not have a specific citrus, softwareor movie companyin mind when they acted. With regardto the secondquestionposedby Pavlovich, it is clear from the record,and from the fmdings of the SuperiorCourt and Court of Appeal, that, far from "general,untargeted acts," Petitioner's conductwas directedat entities in California - the motion picture
6

companies, computercompanies Real Party in InterestDVD CCA. the and Thus,whethergeneraluntargeted actssatisfy the Calder effectstest, hasno bearingon an evaluationof Pavlovich's conduct. Even if that questionwere relevantto the circumstances here, it is clear that a defendant'sactsneednot be targetedat specific California individuals or organizations order to trigger Californiajurisdiction. in 'Expressaiming' underthe Calder effectstest meansexpress aiming m ~

well-established that if California is the placewherethe brunt of the injury
.s is felt, then California jurisdiction is proper.

As

to the

third

question I

identified

by

Pavlovich,

again,

the

recordand the findings of the courtsbelow are clear that Petitionerdid engagein 'somethingmore' than participation in a passive,noncommercialInternet site. In its opinion, the Court of Appeal notesthat Pavlovich: 1) "developedand/orpostedcomputerprogramson the Internet . that misappropriate DVD CCA's trade secrets;"2) knew that a license was requiredto use suchtradesecrets;3) failed to apply for or obtain a license;and 4) "sought to and actually disseminated [DVD CCA's] trade secrets"anyway. Appellate Opinion at 912. Moreover, 'expressaiming' at
4

Appellate Opinion at 918; Bancroft & Masters,Inc. v. AugustaNational,
Core. Vent Corp. v. Nobel Indus.,

Inc., 223 F.3d 1082 (9th Cir. 2000).
S

F.3d 1482,1486(9th Cir. 1993). T

the forum statehas beenheld to constitutethe 'somethingmore' required by Calder. That is exactly what Pavlovich did here. Thus,whether Pavlovichcould be subjectto California jurisdiction without this 'somethingmore' is of no relevancehere and cannotwarrant a reversalof the Court of Appeal's decision. Finally, it is irrelevant,underthe effectstest,whethera web site is passiveand non-commercialas opposed interactiveand to commercial. Thosefactorsarerelevantonly to inquiries -- outsideof the effectstest framework --into whetherthe defendant'scommercialcontacts
6 with a forum subjectthat defendant jurisdiction there. to
As the Superior Court 1 and Court of Appeal correctly

recognized, defendants who misappropriate valuabletradesecretsand inflict injury on major interestsin California cannotbe immunizedsimply by conductingtheir illegal activities from afar over the Internetand can be requiredto answerfor their actionsin this State. In this regard,it should not matterwhetherthe defendant'sactionstarget a person,an entity or a groupof entities. The ideathat an individual, out-of-statecyber-terrorist, for example,could set loosea computervirus with the intent of paralyzing energydelivery, or businesscommunication,or water flow in the Stateof California, yet somehowavoid the jurisdiction of the California courts

6

Panavision Inter'l, L.P. v. Toeppen, 14 F.3d 1316, 1321(9th Cir. 1998). 8

because individual was not targetinga particular individual or entity that makesno sense.The actionsof that defendant aimed at the forum state are and are,thus, under Calder, sufficient to subjecthim to thejurisdiction of the courtsof that forum state. Accordingly, as further detailedbelow, the Court of Appeal's decisionshouldbe affinned. STATEMENT OF FACTS Real Party in InterestDVD CCA is the sole authorized licensorof the encryptiontechnologyknown asCSS.7 DVD CCA licensees CSSandthe associated proprietarytechnologyfor usein an array of computeroperatingsystems,including Microsoft's Windows,Macintosh's MacO/Sandthe Linux operatingsystern.8 Pavlovich himself hasadmittedin sworn testimonythat he is the presidentof a technologystart-upcompany(Pavlovich Aug. Depo.,p 8), a fonner computerengineeringstudent,and a technicianin the computer 7 Contraryto Petitioner's assertion, DVD CCA is not maintainingthis action asan assignee.DVD CCA cameinto existenceprior to the time DeCSSwaspostedon the Internet and,after an interim period during which it administered licenseson behalf of its predecessor interest,took over all in licensingresponsibilitiesin Decemberof 1999. Petitionertsactionsprior to and sinceDecember1999havehannedDVD CCA's business interests. Further,whetheror not DVD CCA were pursuingthis action as an assignee hasno bearingon the jurisdictional issues beforethis Court. 8Thereis no record supportfor Petitioner'sclaims that "the entitieswho licenseCSShadnot permitted CSS-equipped DVD playersto be built for the Linux operatingsystemor for other open-source operatingsystems." C>p Br. p.3. In fact, CSStechnologyhasbeenlicensedto thoseseekingto developa player for the Linux environment. Hoy Decl ~~ 5-20.
9

andtelecommunications industry.9 At the time he postedDeCSSon the Internet,he was a leaderin the "open source"movement,which is dedicated making material availableover the Internet. At that time, to Pavlovichhad foundedand was operatinga groupcalled the LiVid video

Although Pavlovich's Brief on the Merits statesthat he did not have"sole control" over the website,he testified under oath that he was the "founder" and"project leader" of the LiVid video project andthat the
website in question was the host site for that project. I I Pavlovich also

testified that the membersof$e LiVid video project communicated

9 SeeJuly 7, 2000 Depositionof Matthew Pavlovich ("Pavlovich July Depo.") p. 18,cited pagesattached the ShapiroDecl. asExhibit B. to Matthrew Pavlovich, August 4, 2000 ("Pavlovich Aug. Depo") pp. 15-16,40, cited portions attachedasExhibit A to the Declarationof Jonathan Shapiro("Shapiro Decl."), filed with DVD CCA's original appellatepapers;seealso Declarationof Matthew Pavlovich in Supportof his Motion to Quash ("Pavlovich Decl."),' 9, containedin Exhibit B to the Petitioner's original appellatepapers.
11Pavlovich August Depo. pp. 15-17,40.
10 Appellate Opinion at 912; Seealso Depositionof

10

of Appeal's decision,Petitionerand the other defendants developedand/or postedon the Internet a computerprogram called DeCSS,13 which misappropriates DVD CCA' s proprietary tradesecretsand is designedto
14 defeatthe CSSencryptiontechnology.

At the time DeCSSwas postedon the LiVid project website, Pavlovich knew that "there was an organizationwhich you had to file for or apply for a license"to usecertainDVD technology(PavlovichAug. Depo., pp. 24-25, 86-87) (pavlovich July Depo., pp. 86-89). Despitethis knowledge,the LiVid project, which Pavlovich founded,never soughtor
13

For the first time, in his Brief on the Merits, Pavlovichstatesthat "Matt

Pavlovichhimself did not post the code on the LiVid site or anywhere else." This claim hasno factual supportin the record. In fact, the record showsthat Pavlovich refusedto answerdirect questionsabouthis role in postingDeCSSon the Internetaspart of his agreement be deposed to on jurisdictional issues. ~ Pavlovich Aug. Depo.pp. 36-37, 94-95,~ ~ pp.9, 18. Further, Pavlovich's new and cleverly wordeddenial allows Pavlovichto appearto deny involvementin the posting ofDeCSS even if he (i) instructed,aidedor encouraged someone elseto post DeCSSon the website;and/or(ii) simply posteda "button" or text line which, when clicked, deposited codeon users' hard drives. Even Pavlovichhimself, the later in his Brief, characterizes involvementin this caseas "input to a his websiterun by his not-for-profit volunteer group." Pet.Br.,p. 36. Whether "Pavlovich himself' actuallypostedDeCSSon the Internetor whetherhe allowed or encouraged someone elseto do so on his websiteis irrelevant. Either way, he knowingly participatedin the dissemination wrongfully of acquiredtradesecrets. 14 Appellate Opinion at 911-912. Contrary to Petitioner'sclaim that he innocentlyrepublishedDVD CCA's trade secrets the Internet,the on SuperiorCourt ruled that "circumstantial evidence,availablemostly due to the various defendants'inclination to boastabouttheir disrespect the for law, is quite compelling on ... Defendants'knowledgeof impropriety." ~ Order GrantingPreliminaryInjunction, p. 4.
11

utilized DVD obtaineda licenseto useDVD technology, It nevertheless CCA's trade secrets, including thosecontainedin DeCSS. (pavlovich Aug. Depo.,pp. 51, 57-58). When Pavlovich misappropriated DVDCCA's trade secrets, he alsoknew that suchactionswould adverselyimpactthreesignificant industrieslocatedin California - the motion picture industry,the consumer electronicsindustry and the computerindustry. Appellate Opinion at 912. Pavlovichknew the motion picture industry was centeredin California (PavlovichAug. Depo.,pp. 29-30); that DVDs were key instruments the motion picture industry in that they serveto deliver of motion picture contentto their;purchasers (Pavlovich Aug. Depo.,pp. 28); that DeCSSfacilitatesthe pirating of DVDs (Pavlovich Aug. Depo.,pp. 5960); andthat pirating DVDs is wrongful conduct{PavlovichAug. Depo, p. 71). His conducthas in fact injured the motion picture industry by making availablesoftwarethat allows the illegal copying of its copyrighted motion pictures. Further,at the time he misappropriated DVD CCA's trade secrets, Pavlovich knew that the computertechnologyindustry hasa substantial presence California (Pavlovich Aug. Depo.,pp. 41-44). in that makethe Indeed,of the more than 400 CSSlicensees companies computerhardwareand softwarewhich allow consumers view digital to imageson DVDs - 73 are locatedin California, 42 are locatedin Santa
12

Clara County and an additional 17 are in other Bay Area locations. See
Complaint, 1 53.

Thus,the Court of Appeal properly found that Petitioner misappropriated DVD CCA 's trade secrets knowing that suchactions "were injuriously affecting the motion picture and computerindustriesin Califomia"ls and that suchconductthreatens economicwelfare of the the
more than 400 CSS licensees - companies that makethe hardwareand

softwareenablingconsumers view digital imageson DVDs, 73 of which to are locatedin California.16 Finally, Pavlovich's familiarity with CSS,DeCSSand the consequences his actionsis,demonstrated the fact that he was of by designated a potential expertwitnessby the defendan~ was deposed, as and in UniversalStudios,Inc. v. Reimerdes,11 F .Supp.2d294 (SD.N. Y 2000),a casedecidedin the United StatesDistrict Court, SouthernDistrict of New York which involved the sameconductasthat at issuehere. That decision,which enjoinedthe defendants therefrom posting DeCSSto the Internet,was affirmed just threemonthsago by the United StatesCourt of Appealsfor the SecondCircuit. UniversalStudios,Inc. v. Corley, 273 F 3d 429 (2nd. Cir. 2001).
IS

Id. at 915-16.

16 See Complaint,

, 53, attachedasExhibit D to the ShapiroDecl.;

AppellateOpinion at 912, 915-916.
13

PROCEDURAL mSTORY On January21, 2000, JudgeJ. William Elfving of the Respondent SuperiorCourt grantedin part DVD CCA's requestfor preliminary injunctive relief to preventdissemination its proprietary of including information. The Preliminary Injunction preventsthe defendants, Pavlovich,from Postingor otherwisedisclosingor distributing, on their websitesor elsewhere, DeCSSprogram. .. or any other the information derived from this proprietary information.
See Order Granting Preliminary Injunction, p. 2.17

Six monthslater, on June6, 2000, Pavlovich movedthe trial court for an order quashingserviceof process. After full briefmg and oral argument,on August 30, 2000, JudgeElfving deniedPavlovich's motion On September 2000,Pavlovich petitionedthe Court of Appeal for the 11, Sixth AppellateDistrict for a Writ of Mandatecompelling the trial court to quashserviceof process. The court deniedthat petition on October 11 2000. Pavlovichthen petitionedthis Court to review that decision, Upon instructionsby this Court, the Court of Appeal, on January16,2001, orderedthat the SuperiorCourt show causewhy the relief requested by 17 That Orderremainsin effect. On review, the Court of Appeal for the Sixth AppellateDistrict ruled that the orderviolates the First Amendment. I>VD CCA haspetitionedthis Court to review that decision. The injunction remainsin effect pendingdisposition. 14

Petitionershouldnot be grantedand directedthat Petitionerand Real Party In InterestDVD CCA file additional briefs on the matter. On August 7, 2001,the Court of Appeal filed an unanimousopinion, againruling that Pavlovich is subjectto California courtjurisdiction in this matter. Pavlovich againpetitionedthis Court for review of that decision. On December12,2001, this court grantedreview. ARGUMENT

I.

The Court Of Anneal Pronerly Ruled That Pavlovich Is Subject To The Jurisdiction Of The California Courts The Court of Appeal's ruling correctly appliedtraditional,

well-settledrules governingpersonal jurisdiction to the modemworld of the Internet. As the court notedin its opinion: The Internet,asa mode of communicationand a systemof infonnation delivery is new, but the rules governing protectionof property rights [on the Internet] neednot be. Thereis, for instance,sufficient guidanceprovided by the United StatesSupreme Court in Calder v. Jones. Appellate Opinion at 912-13(citation omitted). Contraryto Petitioner's doomsdayrhetoric, the Court of Appeal's ruling doesnot "completely eviscerate"the Supreme Court's ruling in Calder v. Jones(Pet.Br.,p.30), nor doesit basejurisdiction on "random" or "fortuitous" acts(Id.). Rather,the exerciseof jurisdiction over Petitionerfollows the established precedent the U.S. SupremeCourt, this of Court andthe Court of Appealsfor the Ninth Circuit. As the U.S. Supreme

15

Court statedin Calder v. Jones,where a defendant"knew the brunt of the injury would be felt" in the forum state,he or she"must reasonably anticipatebeing haled into court thereto answerfor" his or her conduct. 465 U.S. 783, 788-89(1984). Petitionerprovidesno legitimatereasonwhy this Court shoulddisturb the Court of Appeal's ruling. It is well-settledthat California courtsmay exercisespecificjurisdiction over nonresident defendants when "the statehas 'a manifestinterestin providing its residents with a convenientforum for redressinginjuries inflicted by outof-stateactors.'" VansCompanies, Inc. v. SeabestFoods, Inc., (1996)
14 Cal.4th 434, 447 cert. denied I 522 U.S. 808, citing Burger King v.

Rudzewicz, U.S. 462, 473-74 (1985).18"The defendant 471 neednot ever havebeenphysically presentin the forum statefor specificjurisdiction to

aff'd, 141F.3d 1316, 1321(9th Cir. 1998). Courtsapply a three-parttest to determinewhetherspecific
jurisdiction exists in a particular instance. Ejrn, the defendant must have

purposefullyavailedhimself or herself of the forum. Second, the controversymust arise from the defendant'scontactswith the forum. ThirQ,the exerciseof jurisdiction must comportwith notionsof ' 'fair play

18 The limits of the California long-ann statuteare co-extensive with the limits of dueprocess. Cal. CodeCiv. Proc. § 410.10. 16

and substantial justice." See,e.g.,PanavisionInter 'I, L.P. v. Toeppen,141 F.3d 1316,1321(9th Cir. 1998). In its decision,the Court of Appeal followed this framework. Appellate Opinion at 913-15 As detailedfurther below, Pavlovich's conductclearly satisfiesall three prongsof this test and, thus,his requestthat this Court reversethe Court of Appeal's decision shouldbe rejected.

A.

Pavlovich Purposely Availed Himself Of The Privileges Of This State California Courtshavelong held that the "purposeful

availment" requirementis satisfiedwherea defendant'sintentionalconduct causes harmful effectswithin the state. See,e.g.,Panavision, 4 F.3d at 1321,citing Calder, 46Su.s. 783; Quattronev. Superior Court, 44 Cal.App.3d296 (1975); Hansonv. Denckla, 357 U.S. 235 (1958);McGee
v. International Life Ins. Co., 355 U.S. 220 (1957).

Under the "effects test," a defendant'sactionsconstitute 'purposefulavailment' if thoseactionsare (1) intentional actions (2) expresslyaimedat the forum state(3) causingharm which is sufferedandwhich the defendantknows or reasonablyshouldhaveknown is likely
to be suffered - in the forum state. Panavision, 141F.3d at 1321

When evaluatinga petition for writ of mandate(which is what Pavlovich seeks)~ appellatecourt is confined "to an inquiry as to an whetherthe findings andjudgment of the trial court are supported by

17

substantial, credibleand competentevidence." Rodriguezv. Solis, (5th Dist. 1992) Cal.App.4th495. And, under California law, whereneither party requests factual findings from the lower court, "an appellatecourt must presume that the factswould supportthe trial court's judgement." In

nothing to rebutthis presumption. Further,on motions to dismissfor lack of personal jurisdiction, the allegationsof the complaint are taken astrue, with disputes being resolvedin favor of the plaintiff. See,e.g.,NissanMotor Co., Ltd. v. Nissan ComputerCorp., 89 F. Supp.2d 1154, 1158(CD. Cat. 2000), aff'd, 246 F.3d 675 (9th Cir. Dec. 2(>, 2000). In its Complaint, DVD CCA allegedthat Pavlovich and the other defendants intentionally developedand distributedcomputerprogramsutilizing DVD CCA's trade secrets without authorization,and with the knowledgethat suchactionswould adversely affect threeof California's most prominentand internationally-known industries- the computerindustry, the consumer electronicsindustry and the motion picture industry (seeComplaint,~ 45-74). Thus the Complaint

19By citingbothCalderandPanavision support his ruling,Judge in of

Elfving clearly ruled that Pavlovich's conductmeetsthe effectstest standards containedin thosecases.Factualfindings that can be inferred from a lower court opinion are entitled to the samedeference appellate on review as factual findings that are expresslystated. SeeCity and Countyof SanFrancisco v. Sainez,(Ct. App. 1stDist. 2000) 77 Cal.App. 4th 1302, 1313.
18

allegesthat Pavlovich expresslyaimedhis intentional conductat this State with the knowledgethat suchconductwould causesubstantial hanDhere. This aloneis enoughto establish jurisdiction over Pavlovich in California. In additio~ as detailedbelow, substantialand credible evidenceon the record supports jurisdiction over Pavlovich in California.

1.

Pavlovich's Actions Meet The Intent Prong Of The Effects Test

It is beyonddebatethat Pavlovich's conductwas intentional. If a defendant had accidentallypostedDeCSSto the Internet, or accidentallycreateda programwhich, without a licenseto do so, decrypted the copyrightedcontentofDVDs, suchconduct,without more, might not be considered intentionalconduct. By contrast,however,Pavlovich, has admittedthat (i) he was the founderandproject leaderof the LiVid project, which was createdto help createan unlicensedDVD player; (ii) the livid.on.openprojects.net websiteon which DeCSSwas postedwas the host site for his LiVid video project; Pet.Br.,p. 36; PavlovichAug. Depo.,pp. 15-17,40; Appellate Opinion, p. 12; (iii) Petitionerknew DeCSSwas developed reverseengineering(Appellate Opinion at 912; Pavlovich by Aug. Depo.,pp. 32-33) and that suchreverseengineeringis illegal (Appellate Opinion at 912; LiVid posting,October 1, 1999,attachedas Exhibit C to ShapiroDecl.); and (iv) Petitionersoughtto distribute DVD CCA's tradesecrets while knowing that suchaction was illegal (Appellate

19

Opinion at 912; LiVid postings,November 10, 1999,attached Exhibit C as to ShapiroDecl.). Moreover,Pavlovich was limiting his role on other projectsand "really changinggearsfor LiVid.~~Id. Even Pavlovich himself characterizes involvementin this caseas "input to a websiterun his by his not-for-profit volunteergroup." Pet.Br.,p. 36. Nowheredoes Pavlovich claim - nor could he - that his role in the unlawful dissemination ofDVD CCA's trade secrets was accidental.
In arguingthat the Court of Appeal misconstrued Calder's intent requirement,Pavlovich confusingly scramblesCalder's "intent" requirementwith its "expressaiming" requirementand contendsthat the Court of Appeal "lowered the intent elementof the express aiming requirement." Pet.Br.,p.19. Under the intent requirementof the effectstest, it is a defendant'sactionswhich must be intentional,asPavlovich's were. It was the defendants'"intentional, and allegedly tortious, actions" that the Calder court cited in ruling that California jurisdiction was proper in that case. Calder at 789 (emphasis added). As setforth above,Pavlovich's actionsclearly satisfy this intent standard, he doesnot and claim otherwise. The Court of Appeal properly appliedthis standard and did not, as Pavlovich confusingly asserts, createa negligencestandardor "lower the intent standard the expressaiming requirement." Pet.Br.,p.19 of

2.

Pavlovich's Actions Meet The "Expressly Aiming" Prong Of The Effects Test

The "expressaiming" requirementof the effectstest requires that the defendant aimedhis conduct~ ~ fQn!m~.

As stated the by

20

Calder court itself, "[i]n judging minimum contacts,a court properly focuseson 'the relationshipamongthe defendant, forum, andthe the litigation", (Id. at 788), not the defendantand the plaintiff. Indeed, knowledgethat "the brunt of the hanDwould be sufferedin California" has beendeemed "[ m]ost significant" factor favoringjurisdiction underthe the effectstest. Core-VentCorp. v. Nobel Indus., 11 F.3d 1482, 1486(9th Cir. 1993). In Panavision,for example,the court found that the express aiming requirementwas satisfiedwhere, inter alia, the defendant registered the plaintiff's motion picture cameratrademarks "domain names"on the as Internetknowing that plainti~ did substantial business with the motion picture industry and that "the heartof the theatricalmotion picture and television industry is located[in California]." Id; seea/soNissan,89 F.Supp.2d1154(C.D. Ca. 2000)(holdingthat a North Carolinadefendant was subjectto California jurisdiction for trademarkinfringementover the Internet). In 3DO Co. v. Pop/oPSoftware,Inc., 49 U.S.P .Q.2d 1469
(N.D. Cal. 1998), a California plaintiff sued for misappropriation of trade secretsassociatedwith computer games. In upholding jurisdiction over the nonresident defendant, the court held that: The computer game indus:tr.Y primarily located in is California. Therefore, defendant's conduct is likely to have an effect in the forum state. As Defendants should know their 21

actionsare likely to causehanDin California, underthe 'effects test,, the purposefulavailmentrequirementnecessary for specificjurisdiction is satisfied. 49 U.S.P.Q.2dat 1473(emphasis supplied);seealso CableNewsNetwork
v. GoSMS.Com, 56 U .S.P.Q.2d 1959 (S.D.N.Y. 2000) (holding that a

California defendant was subjectto New York jurisdiction where defendant "should havereasonablyexpected transmittal of copyright infringing the
content. . .to have consequencesin New York.").

The recordprovidessubstantial, credible and competent evidence,much of it from his own sworn statements, Pavlovich that expresslyaimedhis intentional conductat the Stateof Califomi~ knowing that significant injury would be felt by threeof California's largestand most importantindustries,and,specifically, by DVD CCA. As DVD CCA
demonstrated, and as the Court of Appeal found, Petitioner has admitted

that:

.

Petitioner's goal-- through the LiVid project -- wasto developan unlicensedDVD player that would useDeCSSto decryptDVD data- copyrighted motionpictures (Appellate Opinion at 912; Pavlovich Aug. Depo.,pp. 28, 30-33); At the time PetitionerpostedDeCSSon the Internet,he knew that DeCSSfacilitatesthe pirating of motion pictureson DVDs (Appellate Opinion at 912; Pavlovich Aug. Depo.,pp. 59-60) andthat pirating DVDs is wrongful conduct (Appellate Opinion at 912; Pavlovich Aug. Depo.,p. 71); Indeed,asthe Court of Appeal opinion notes,"Pavlovich

.

admittedin his depositionthat 'there was an organizationthat you had to apply for a licenseor whatever' to use certainDVD technology." Appellate
22

Opinion at 912. Nonetheless, "Pavlovich neversoughtor obtaineda license,""admittedthat his LiVid project utilized DVD CCA's trade secrets,"and "soughtto and actually disseminated thosetrade secrets.

picture industry,the consumerelectronicindustry and the computer industry was centeredin California. [d. Thus,Petitionertargetedhis conductat the motion picture, consumerelectronicand computerindustriesin California and did not simply engagein "general," "untargeted"acts,ashe claims.21 Petitioner'scontentionthat the effectstest requiresa defendant intentionally target a specific, known plaintiff ratherthan an to "industry" beforejurisdiction can be exercised(Pet.Br.,pp. 24-30) is

20Pavlovi.ch'sclaim that he did not know DVD CCA's actualnameor precise location until commencement this lawsuit (petition, p. 25) is similarly of irrelevant. The salientfacts are that Pavlovich (I) knew "there was an organizationwhich you had to file for or apply for a license" to usecertainDVD technology(pavlovich Aug./ Depo.,p. 24-25, 86-87; Pavlovich July Depo.,pp. 86-89; and (ii) knew or shouldhaveknown that his conductwould affect this licensingentity's California interestsbecause knew the motion picture, he consumerelectronicsand computerindustriesarelocatedin California. See,e.g., Core-Ven!v. Nobel Indus., 11 F.3d at 1486.

It is for this reasonthat Pavlovich's relianceon Callaway Gol/Corp. v. Royal CanadianGolf Ass'n, 125F.Supp.2d1194(C.D.Ca!.2000), is unfounded. Whereas defendant the there "merely" knew that "a corporate defendant might be locatedin California," (Id. at 1206)(emphasis supplied),Pavlovich knew that DVD CCA and others"~Q.Y1.Q the brunt feel of the effects of [his] actionsin California." [d. (emphasis supplied).
21

23

completelyunfounded. As the California Court of Appeal for the Fourth
District recently stated: [T]he defendant's forum related activities need not be directed at the plaintiff in order to give rise to specific jurisdiction [T]he nexus reQuired to establish s}2ecific jurisdiction is between the defendant. the forum. and the litigation - not between the }21aintiff and the defendant.

CassierMining Corp. v. Superior Court (1998) 66 Cal.App.4th 550, 557, citing VansCompanies, Inc. v. SeabestFoods, Inc. 1996) 14 Cal.4th 434, 455 (emphasis supplied), The Ninth Circuit has madeit equally clear that
"express aiming" means express aiming at the forum state, not necessarily

at a specificparty. SeeBancroft & Masters,Inc. v. AugustaNational, Inc. 223 F.3d 1082(9th Cir. 2000) In the instantcase,the Court of Appeal similarly statesthat
Neither does Calder ISlanguage suggest that the defendant
As the court keenly observed in Cassiar Mining Corp. v.
must have known of the plaintiffs identity and location

Superior Court (1998) 66 Cal.App.4th 550, 557, 78: "[T]he defendant'sforum [related] activities neednot be directedat
,T]he nexus required
plaintiff in order

to establish
give rise

specific jurisdiction
specific jurisdiction

is

the

to

between the defendant, the forum, and the litigation--not between the plaintiff and the defendant.

Appellate Opinion at 918. (Italics in Appellate Opinion, citations
omitted). 22

22Similarly, in Gutierrezv. Givens,1 F .Supp.2d1077(SD.Ca. 1998),the defendants, non-residents California, attempted hide assets of to from potential creditors. Thesepotential creditorswere more than 29,000class plaintiffs in a classact\onlaw suit. Despitethe fact that the defendants did
24

to

Pavlovich citesBancroft & Masters,Inc. v. AugustaNational, Inc., 223 F.3d 1082, 1088(9th Cir. 2000), for the propositionthat a defendant'sout-of-stateconductmust be aimed at an individual or particularentity in order to meetthe expressaiming standard.This contentionis belied by the very wording of the effects test itself, as stated by the Calder court and reiteratedby very the Bancroft court cited by Pavlovich. The relevantjurisdictional test is expressaiming "at the forum state,"not at a particular entity in the state,much lessat the particular plaintiff in the suit. Thus, in Calder, the SupremeCourt statedthat the defendants "intentional, and allegedlytortious, actionswere expressly aimedm California," (465 U.~. at 783) not "at the plaintiff in California". And, in Bancroft, the court statedthat: "the letter was expresslyaimed.@! California, because individually targetedB &M, a California it corporation...." Bancroft & Masters,Inc. v. AugustaNational, Inc., 223 F.3d 1082, 1088(9th Cir. 2000) (emphasis supplied). As the Court of Appealspointed out below: Pavlovich misreadsBancroft. Bancroft did not interpretthe "expressaiming" requirementof Calder to meanthat the defendant must know the identity and location of the plaintiff when it undertakes wrongful acts. Bancroft statedmerely the that it understood express the aiming requirementof Calder not aim their conductat any particular, known, California party, the court ruled that they "knew or shouldhaveknown that their actionswould later iRjurejudgementcreditorsin California." Id. at 1082. Thus,the court

feund, jurisdictionwasproper.Id.
2S

to be "satisfied when the defendantis allegedto have engaged in wrongful conducttargetedat a plaintiff whom the defendant knows to be a residentof the forum state." (Bancroft,supra, 223 F.3d at p. 1087.) Bancroft did not say that targetingthe wrongful conduct"at a plaintiff whom the defendant knows to be a residentof the forum state" is the only way to satisfy Calder IS"expressaiming" requirement. AppellateOpinion at 918 (emphasis supplied). The Edmundscase,also cited by Pavlovich, is not an "effects test" caseandthereforedoesnot evenaddress issueof express the aiming. Rather,in Edmunds,as Pavlovichhimself states, jurisdiction was found to be improperbecause defendant'saction merely "set into motion events the which ultimately injured a California resident." Pet.Br.,p. 23, citing Edmundsv. Superior Court, (1994) 24 Cal.App.4th221.23 By contrast, Pavlovichengaged intentionalconductknowing and intendingthat the in conductwould affect partiesin this State.
Similarly, Cybersell,24Calloway25 and Gordy26(cited by

Petitioner)are inapplicableto the questions presented here. Thosecases involved only injury to individual plaintiffs, not to any industry. Thus~ thosecourtsdid not needto reachthe "industry" question. Eachof those 23 The defendant was an Hawaii attorneyrepresenting California company a in a Hawaii lawsuit. Edmunds 224. at

2S Calloway Golf Corp. v. Royal CanadianGolf Ass'n, (C.D. Cat. 2000) 2000U.S. Dist. LEXIS 19032.

26

cases, however,doesspecify that the relevantquestionunderthe effectstest is the targetingof the fQn!m ~. According to Pavlovich's contraryview, a personwho tired a bullet into California could be suedin California only if he fired with the intent to hurt a particular, known, California party. A personwho simply stoodat the Nevadaborder and fired randomly into this Statecould not, underPavlovich's framework, be broughtto answerfor his conducthere. Similarly, underPavlovich's formulation, a party could cometo the Nevada borderand,without fear of California courtjurisdiction, releasefruit flies into this Statein order to generallysabotage citrus industry. According the to Pavlovich,only if the sabot~ur had a particular companyin mind as a target- ratherthan a generalindustry could he be called to answerfor his conducthere. The law cannotturn on suchdistinctions,asthe Stateof California clearly is entitled to protect its citizens,its businesses its and industriesfrom out-of-statetortfeasors.

3.

Pavlovich's Conduct Caused Harm That He Knew Or Reasonably Should Have Known Was Likely To CauseHarm In California

As a leaderin the "open source"movement,a computer engineeringstudent,the presidentof a technologystart-upcompany,and a technicianin the computerand telecommunications industry, Pavlovich was certainly awarethat posting infonnation on the Internet would make that infonnation availableto a large and geographicallyscattered
27

populationof individuals and organizations. Indeed,that was his intention asthe founderandproject leaderof the LiVid group,which seeksto create unlicensed DVD decryptionapplications. PavlovichAug. Depo.,pp. 2225. Pavlovich cannotnow claim to havebeennaIveor unsophisticated in his understanding the impact his actionswould have. of The record,indeed,demonstrates Pavlovich's intentional that actionsdid, in fact, causehanDin California, ashe knew they would. Specifically,by intentionally posting or participating in the dissemination ofDVD CCA's proprietarytechnologyon the Internet,Petitioner threatened very existenceofDVD CCA, a California trade association, the
which is the sole licensor of the I intellectual property misappropriated by

Petitioner. Petitioner's conductalsojeopardizedthe economicviability of the dozensof CSSlicensees the computerand consumerelectronics in industriesin California. SeeComplaint,' 52-53;Appellate Opinion at 912 Finally, Petitioner's conductput at risk one of the principle assets the of motion picture companies their copyrightsin their motion pictures, Petitionerknew thesecompanies ~ in Califomia.27 in fug (not simply "reputedto be")

21

AppellateDecision at 912, citing DepositionAdmissions.
28

B.

The Court Of Appeal's Decision Is Consistent With The Dictates Of Calder Pavlovich identifies eight points which he claims

meaningfully distinguishthis casefrom Calder. He is wrong. The m! point raisedby Pavlovich is the allegedly"non-

commercial"natureof his activities. No caselaw cited by Pavlovich and no caselaw in existence, DVD CCA's knowledge- makes to jurisdictional detenninations basedon whethera tort was committed"for profit" as opposed for other motives. Pavlovich offers no rationalewhy such to considerations shouldmatter,and indeedthey shouldnot. Thus, this is a distinction without a difference. Second,Pavlovich claims that because DVD CCA "does business world-wide" it is lesslikely to suffer harm in one geographic location. As Panavision,3DO and other casesdemonstrate, however, where a defendant knew or shouldhaveknown that the brunt of his conduct would be felt in a particular forum --because, example,the movie for industry is centeredthere- he shouldexpectto be called into court in that forum to answerfor his conduct. Thi!.4,Pavlovich allegesthat his conducthannedonly the Japanese entitieswho originally licensedCSS. This is incorrectbecause his conducthasharmedand continuesto harm DVD CCA, its licensees, and the movie, computerand consumerelectronicsindustries.

29

Fourth, Pavlovich allegesthat he had no interactionwith California residents. This is of no relevanceunderthe effectstest. Further, Pavlovichadmitsthat somemembersof his LiVid video project, including somewho contributedto the host website,may have beenlocatedin California. SeePavlovich Aug. Depo.,p. 19. fifth, Pavlovichallegesthat the websiteat issuewas not underhis "sole control." On the one hand,Pavlovich allegesthat the websitewas "passive" (seePavlovich's ~ point, infra) and could not

thereforereceiveinput from California users. On the other hand,he now claimsthat the websitewas not underhis sole control and receivedinput from an "unconstructedgrouP. contributors," someof which may have of beenin California. Legally, however,all that mattershereis that Pavlovich foundeda group, for which this websiteservedas a host, that was dedicated to the development an unlicensedDVD player utilizing wrongfully of obtainedintellectual property. WhetherPavlovich misappropriated those tradesecrets aloneor in concertwith an "unconstructedgroup of contributors,"jurisdiction is proper in California. ~, Pavlovich claims that the LiVid websitewaspassive

and did not solicit information from California. This is inconsistent with Pavlovich's other statements (seehis Eif1hpoint, supra) and with his sworn statement certain contributorsto his LiVid site may havebeenin that

30

California. Pavlovich Aug. Depo.,p. 19. Further,the passivity and commercialnatureof a websiteare irrelevantunderthe effectstest. Seventhand Eighth, Pavlovichreiteratesthe "intent" and "targeting" points that were addressed, supra, in point I.A The Court of Appeal decisionis fully consistentwith Calder and correctly determinedthat Pavlovichpurposefully availedhimself of a
California forum.

II.

The Claims Arise From Pavlovich's Forum-Related Activitv There is similarly no merit to Pavlovich's assertion that DVD

CCA's claims do not arise directly from Pavlovich's forum-relatedconduct. In California, courtsusea "bu,t-for" test to detenninewhethera particular claim arisesout of forum-relatedactivities. See,e.g.,Ballard v. Savage, 65 F.3d 1495,1500(9th Cir. 1995). Thus,the questionis: but for Pavlovich's forum-relatedconduct,would DVD CCA's claims againstPavlovichhave arisen? The answeris clearly no. If Pavlovichhad not misappropriated 28Petitionerclaimsthat the Court of Appeal's decisionis in conflict with JewishDefenseOrganizati~n,Inc. v. Superior Court, 72 Cal.App.4th 1045 (1999) and CybersellInc. v. Cybersell,Inc. 130F.3d 415 (9th Cir. 1997). He is incorrect. Pavlovich relies on thesecasesfor the propositionthat the degreeof interactivity and the commercialnatureof a web site are relevant underthe effectstest. This argumentignoresthe initial holdings in Jewish DefenseOrganizationand Cybersellthat the effects test had not beenmet because defendant'sactionsdid not createa "foreseeable the risk of injury" in California. Only after making this thresholddecisiondoesthe court look to the interactivity and commercialnatureof the web site in questionasan alternativemeansof determining'purposeful availment' for jurisdictional purposes.That is not the casehere,nor doesPetitioner argueotherwise.
31

DVD CCA's trade secrets, then DVD CCA's claims for misappropriation againstPavlovichwould not have arisen. Pavlovichclaims that the Court of Appeal erredin evaluating this issuewhen it considered effect misappropriationofDVD CCA's the tradesecrets on the unlawful "distribution of copyrightedmaterial of had California Companies the pirating ofDVDs." Pet.Br.,p. 37 (citations or omitted). Pavlovich claimstheseeffects are irrelevantherebecause "there is no allegationthat Petitionerwas involved in either activity." Id. To the extentthis argumentis relevantat all, it is incorrect. DVD CCA does allegethat Pavlovich andthe other defendants facilitated the unlawful
distribution of copyrighted motion , pictures and the pirating ofDVDs by

disseminating DVD CCA's trade secrets the fonD of computer in decryptiondevicesincluding DeCSS. Complaint~ 45-74. III. Jurisdiction Here Comnorts With Notions of Fair Pla~ and Substantial Justice Finally, not only is it fair andjust for the SuperiorCourt to exercise jurisdiction over Pavlovich, any otherresult would run contraryto accepted processanalysis. "An otherwisevalid exerciseof personal due jurisdiction is presumed be reasonable.Accordingly, once a court fmds to purposefulavailment,it is the defendant'sburdento presenta compelling casethat the exerciseof jurisdiction would be unreasonable."Nissan

32

Motor Co.,Ltd., 89 F.Supp.2dat 160. Here, Pavlovich comesnowhere nearmeetingthis burden. In detern1ining whetherjurisdiction over a nonresident comportswith notions of fair play and substantial justice underthe due processclause,courtsweigh sevenfactors: (1) the extentof the defendant'spurposefulinterjection into the forum state'saffairs;
,.}

the burdenon the defendantof defendinga suit in the

forum;
(3) the extentof conflict with the sovereigntyof the defendant's state; (4) (5)

the forum state'sinterestin adjudicatingthe dispute; the most efficient judicial resolutionof the controversy; the importanceof the forum to the plaintiff's interestin convenientand effective relief; and the existence an alternativeforum. of

Core-Vent Corp.,

F.3d at 1487-88. No single factor is dispositive..Id.

In the Court of Appeal below and in his Petition to this Court, Pavlovich lists just five of thesesevenfactors(numbersone,two, four, five, and seven)29 discusses and only four of them (numbersone,two, four and

29 The 1959 case citedby Pavlovich (FisherGovernor v. Superior Co.

Court, 53 Cal.2d222), fails to list factor three:the importanceof the forum to the plaintiff's interestin convenientand effective relief; and factor six: the extentof conflict with the sovereigntyof the defendant'sstate. See PavlovichPA, p. 9. As demonstrated below, both of thesefactorsoperate in of favor exercisingjurisdiction here.
33

seven). In his Brief on the Merits to this Court, he lists and discusses all sevenfactorsfor the first time. All sevenfactorsfavor the exerciseof jurisdiction over Pavlovich. Factorsfour through seven,in particular, strongly militate in

With regardto factor four, California hasan immeasurably this large interestin adjudicatingthis dispute. Even Pavlovich recognizes interest. Pet.Br.,p. 41. DVD CCA is a trade association fonned by three
industries with a tremendous presence in the California economy - the motion picture industry, the computer industry and the consumer electronics industry. Complai,nt, ~ 40-44, Pavlovich's actionsstrike at the

core of theseindustriesand affect their ability to operateeffectively in the regardto the first three factors: The extent of Pavlovich's intrusion into California -- factor one -- hasbeenestablished above. SeeSectionI.A., supra. The burdenon Pavlovich in defendingthis suit in the forum - factor two -- is minimal. Pavlovich is represented the samecounsel by representing California defendant the who hasappeared this action. If in this suit were filed in anotherjurisdiction, Pavlovichwould haveto incur the additional expense hiring counselin that state. At most, Pavlovich of would haveto cometo California for the trial itself. This would be true in the caseof any nonresidentdefendant thereforecannotoperateas a and reasonto denyjurisdiction. Further,Pavlovichwillingly traveledfrom Texasto New York to participatein UniversalStudios,Inc. v. Reimerdes. Thus,Pavlovich's complaintsabouthaving to travel to California for this trial ring hollow. Moreover,the burdenon the defendantis no longer heavily weighedby courtsin determiningjurisdiction. SeePanavisionat 1323. And, Pavlovichhastraveledto California to attendoral argumenton this jurisdictional issuein the Court of Appeal. As for factor three,there is no conflict with the defendant'sstate,nor doesPavlovich claim so. In fact,
30 With

34

emergingInterneteconomy. Thus, California maintainsa stronginterestin providing an effective meansof redressfor its residentsinjured by commercialmisappropriation. With regardto factor five, the efficient resolutionof this controversyclearly requiresthat all defendants tried in onejurisdiction. be In fact, the one casecited by Pavlovich on this point highlights "the avoidance a multiplicity of suits and conflicting adjudications"as a of major factor to be considered when deciding whetherto exercise jurisdiction. Fisher Governor Co., 53 Cal.2d at 225-26, y e~ if jurisdiction over Pavlovich is not upheld,DVD CCA will be forcedto suethe defendants this casein the ~ozensof jurisdictions in which they reside in Nothing could be lessefficient. The underlying facts and legal issues
surrounding each defendant are virtually identical - they all postedthe trade

secrets their web sites. Arguing and re-arguingthesefactsand legal on issuesin many different jurisdictions ensures wasteof valuablejudicial the resources risks the promulgationof conflicting verdictsand court and rulings. California, asDVD CCA's primary place of business as the and site of the greatestinjury, is undeniablythejurisdiction in which this case shouldbe tried. Pavlovich claims that many witnesses with relevant infonnation to this casemay exist in Norway, England,New York and

evenPavlovichcontendsthat this factor is of only slight relevance here Pet.Br.,pp. 40-41.
35

Connecticut. This point is irrelevant herebecause Pavlovich would surely contest jurisdiction in thoseforums aswell. Further, asPavlovich admits, at leasttwo key witnesses,aswell asplaintiffDVD CCA, are locatedin
California.

Pet.Br.,p. 4 For thesesamereasons, factor six the plaintiffs interestin

convenientand effective relief. demands this casebe heardin a single that jurisdiction: California. The expense inconvenience pursuing and of identical cases a multiplicity of jurisdictions would be an extraordinary in burdenfor DVD CCA. Further, the possibility of conflicting adjudications risks renderingany reliefDVD CCA doesobtain ineffective. With regardto f~ctor seven,thereis no alternativeforum in which DVD CCA's claims can be as effectively pursued. It is California which hasthe greatestinterestin the outcomeof the litigation and California wherethe brunt injury hasoccurred. California is uniquely appropriate a site to pursueclaims againstall the defendants. as .cONCLUSION Contraryto Pavlovich's contention,the SuperiorCourt's order and the Court of Appeal's affmnation of that order, do not undermine the established rules of personal jurisdiction. Rather,they recognizethe well-established principle that when a defendant'sintentional conduct causes hanDfuleffectswithin this State,he canbe called to answerfor that

36

conducthere. Defendantswho misappropriate valuabletrade secrets and inflict injury on major interestsin California cannotbe immunizedsimply by conductingtheir illegal activities from afar over the Internet. If the courtsof this Statecannotredressinjuries directedat this Statethroughweb site activity, then the power of the Internetwill becomea dangerous resourcefor intellectual property thieves. It is fair and it is the law that defendants who deliberatelychoseto injure interestsin California be requiredto answerfor their actionsin California. WHEREFOREDVD CCA respectfullyrequests that this Court affIrm the decisionof the Court of Appeal and reject Pavlovich's
Petition for a Writ of Mandate. \

Dated: February13, 2002 WElL, GOTSHAL & MANGES LLP Silicon Valley Office
201 Redwood Shores Parkway Redwood Shores, CA 94065 Telephone: (650) 802-3000

By:

ROB RT . SUGARMAN JEFFREYL. KESSLER GEOFFREYD. BERMAN WElL, GOTSHAL & MANGES LLP 767 Fifth Avenue New~York,NY 10153 Attorneys for Plaintiff
DVD INC. COpy CONTROL ASSOCIA nON. .

37

conducthere. Defendants who misappropriate valuabletradesecrets and inflict injury on major interestsin California cannotbe immunizedsimply by conductingtheir illegal activities from afar over the Internet. If the courtsof this Statecannotredressinjuries directedat this Statethroughweb site activity, then the power of the Internetwill becomea dangerous resourcefor intellectualpropertythieves. It is fair and it is the law that defendants who deliberatelychoseto injure interestsin California be requiredto answerfor their actionsin California. WHEREFOREDVD CCA respectfullyrequests this that Court affirm the decisionof the Court of Appeal and reject Pavlovich's Petition for a Writ of Mandate. Dated: February14,2002 WElL, GOTSHAL & MANGES LLP Silicon Valley Office 201 RedwoodShores Parkway RedwoodShores, CA 94065 By: (Bar No. 151650) ROBERT G. SUGARMAN JEFFREYL. KESSLER GEOFFREYD. BERMAN WElL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, NY 10153 Attorneysfor Plaintiff
DVD COpy CONTROL INC. ASSOCIA nON,

31

CERTIFICATE OF SERVICE I, JeanWirdzek, herebycertify that on February14,2002, I causeda copy of Real Party in Interest DVD Copy Control Association's Brief on the Merits to be sentvia
U.S. Mail to:

Allon E. Levy HS LAW GROUP 210 North Fourth Street,Suite 400 SanJose,CA 95112 Fax: (408) 295-5799

Robin D. Gross ELECTRONIC FRONTIER FOUNDATION 454 Shotwell Street SanFrancisco,CA 94110 Fax: (415) 436-9993

I causeda copy of the foregoingto be handdeliveredto: Trial Court: Clerk of the SantaClara County SuperiorCourt to be deliveredto Hon. William J. Elfving

191NorthFirst Street

'

SanJose,CA 95113 Appellate Court: Clerk of the Court of Appeal Sixth Appellate District 333 West SantaClara St., Suite 1060 SanJose,CA 95113 I declareunderpenalty of perjury, underthe laws of the Stateof California, that the foregoingis true and correct,andthat this Declarationwas executedat RedwoodShorest California on February14t2002.

J

SVI :\12~1\2

S@OI!.n0c-.42711.0003

Master your semester with Scribd & The New York Times

Special offer for students: Only $4.99/month.

Master your semester with Scribd & The New York Times

Cancel anytime.