Pavlovich v. Superior Court, 29 Cal.4th 262, 58 P.3d 2, 127 Cal.Rptr.2d 329, 58 P. 3d 2, 65 U.S.P.Q.2d (BNA) 1422 (2002) (full-text).
In December 1998, the motion picture and DVD industries created the DVD Copy Control Association, Inc. (“DVD CCA”) — the plaintiff in this case — a California-based, non-profit trade organization, to control and administer licensing of the Content Scrambling System (“CSS”), encryption technology that assures DVDs cannot be copied and can be viewed only on DVD players that, by license, have the technology necessary to decrypt the data on the DVDs.
Defendant Matthew Pavlolich (“Pavlovich”) is a resident of Texas. Previously, Pavlovich had been a computer engineering student at Purdue University in Indiana. At Purdue, Pavlovich founded and led the “LiVid project,” whose purpose was to support DVD and video technology on the freely available Linux computer operating system -- and which had as a goal defeating CSS and allowing easy copying of DVDs. As part of this effort, the LiVid project operated a website which, as early as October 1999, posted the source code of a computer program called DeCSS, which allowed users to decrypt ]data on CSS-protected DVDs and enabled the placement of this data on computer hard drives or other storage media, for later use. In this way, users can make copies of DVDs as well as view them on unlicensed players.
DVD CCA sued Pavlovich (and others who had publicized DeCSS) in Santa Clara County Superior Court for misappropriation of the CSS trade secrets, which are allegedly found in or used by DeCSS. DVD CCA did not make a claim for copyright infringement in connection with pirated DVDs. DVD CCA sought only injunctive relief, not monetary damages.
Pavlovich filed a motion to quash the summons and complaint, arguing that the California court did not have [[personal jurisdiction] over him. The trial court denied the motion, as did the appellate court. The California Supreme Court reversed the lower courts and ended the civil action in Pavlovich’s favor.
California Supreme Court Proceedings
The legal question involved the application of the U.S. Supreme Court’s Calder v. Jones “effects test” for personal jurisdiction and whether Pavlovich had purposefully directed his Internet-based, anti-CSS activities toward California and caused injury felt there — specifically, by California’s motion picture and high-tech industries — such that it would be reasonable and fair to make him defend himself in a court in California. The California Supreme Court found no specific jurisdiction, but characterized the case as “close.”
The Court observed that it was insufficient for jurisdiction purposes that Pavlovich knew, or should have known, that his intentional activities would foster DVD piracy and thus harm a number of companies located primarily in California that commercialized DVDs. In other words, the mere foreseeability of such injuries in California did not create jurisdiction there. To maintain the suit, DVD CCA had to go further and adduce evidence that Pavlovich “expressly aimed” or “targeted” his tortious conduct at California. According to the majority opinion, DVD CCA could not prove this point.
Following Zippo Manufacturing Co. v. Zippo Dot Com, Inc., a Pennsylvania case, the California Supreme Court’s “express aiming” analysis turned on the features and interactivity of the LiVid website. The website certainly could be accessed by Internet users in California. But like all publicly-available websites, the site was viewable from anywhere.
The Court considered that the website was “passive,” i.e., simply posted information. “A passive website that does little more than make information available to those who are interested is not grounds for the exercise of personal jurisdiction.” The LiVid website did not expressly encourage its audience, much less Californians in particular, to use DeCSS to pirate DVDs. Indeed, the website had no interactive features to allow for communications with viewers, in California or elsewhere. Moreover, there was no evidence that any California resident ever visited the website, much less downloaded DeCSS. In sum, “[t]here is no evidence in the record suggesting that the site targeted California.”
The Court addressed and distinguished a group of cases in which jurisdiction was found, and where the defendants knew that their torts would inflict injury in the forum. The Court noted that each of those cases exhibited other bases for jurisdiction beyond the defendants’ knowledge of the location of the effects of their acts.