9th Cir Copyright Case Re Venue

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Published
Case from the 9th Circuit discussing jurisdiction based on website publication
  FOR PUBLICATION UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT    B RAYTON P URCELL LLP, aCalifornia partnership, Plaintiff-Appellee, v.No. 07-15383R ECORDON & R ECORDON , aD.C. No.California partnership,  CV-04-04995-EMC  Defendant-cross-claimant- OPINION  Appellant, v.A PPTOMIX I NC .; J ONATHAN L EE , Cross-defendants.  Appeal from the United States District Courtfor the Northern District of CaliforniaEdward M. Chen, Magistrate Judge, PresidingArgued and SubmittedOctober 21, 2008—San Francisco, CaliforniaFiled August 5, 2009Before: Mary M. Schroeder, Dorothy W. Nelson andStephen Reinhardt, Circuit Judges.Opinion by Judge D.W. Nelson;Dissent by Judge Reinhardt 10389  SUMMARY Intellectual Property/Copyrights The court of appeals affirmed a judgment of the districtcourt. The court held that venue was proper where a plaintiff alleged that a Southern California defendant knowinglydirected infringing acts to the Northern District of California,knowing that the plaintiff was a resident of this district andwould suffer any injuries in this district.Appellee Brayton Purcell LLP filed a copyright infringe-ment suit in the Northern District of California against appel-lant Recordon & Recordon, a Southern California law firm,alleging that Recordon knowingly directed infringing acts tothis district, knowing that Brayton Purcell was a resident of this district and would suffer any injuries in this district. Bray-ton Purcell further alleged that Recordon made commercialuse of Brayton Purcell’s website and of the copyrighted mate-rial and knowingly used its copyrighted work for the purposeof promoting its business in the field of elder abuse law, incompetition with Brayton Purcell. Recordon moved to dismissfor improper venue and for other reasons. The district courtdenied Recordon’s motion. After a settlement conference, theparties agreed to submit to binding arbitration. The arbitratorfound for Brayton Purcell, and the district court entered judg-ment in its favor.Recordon appealed, challenging only the district court’sdenial of its motion to dismiss for improper venue. [1] Under 28 U.S.C. § 1400(a), in copyright infringementactions, venue is proper in the district in which the defendantor his agent resides or may be found. The Ninth Circuit inter-prets this statutory provision to allow venue in any judicialdistrict in which the defendant would be amenable to personal jurisdiction if the district were a separate state. [2] The Ninth 10390B RAYTON P URCELL v. R ECORDON & R ECORDON  Circuit employs a three-prong test to determine whether aparty has sufficient minimum contacts to be susceptible tospecific personal jurisdiction. [3] The first prong is satisfiedby either purposeful availment or purposeful direction, which,are two distinct concepts. In this case, the underlying actionwas copyright infringement, which is often characterized as atort. Purposeful direction is therefore the proper analyticalframework in this case. [4] Under this test, the defendantallegedly must have (1) committed an intentional act, (2)expressly aimed at the forum state, (3) causing harm that thedefendant knows is likely to be suffered in the forum state.There is no requirement that the defendant have any physicalcontacts with the forum. [5] Recordon committed an intentional act when it createdand posted an elder law section on its website that infringedBrayton Purcell’s copyright. [6] As to the requirement that thedefendant’s conduct be expressly aimed at the forum, mainte-nance of a passive website alone cannot satisfy the expressaiming prong. [7] The express aiming requirement is satisfiedwhen the defendant is alleged to have engaged in wrongfulconduct targeted at a plaintiff whom the defendant knows tobe a resident of the forum state. [8] Given the paucity of firms with elder abuse expertise,any use of the infringing material by Recordon to advertise inSouthern California placed Recordon in direct competitionwith Brayton Purcell. [9] Taking Brayton Purcell’s allegationsand statements as true, Recordon individually targeted Bray-ton Purcell by making commercial use of Brayton Purcell’scopyrighted material for the purpose of competing with Bray-ton Purcell for elder abuse clients. That Recordon’s prospec-tive clients reside outside the forum was irrelevant as long asRecordon individually targeted Brayton Purcell, a forum resi-dent. Brayton Purcell thus satisfied its burden of showing thatRecordon expressly aimed its conduct at the forum by indi-vidually targeting a known forum resident. 10391B RAYTON P URCELL v. R ECORDON & R ECORDON  [10] Recordon did more than merely maintain a passivewebsite. By plagiarizing Brayton Purcell’s website verbatim,Recordon allegedly placed the two law firms in competitionin the area of elder abuse law and created confusion amongpotential clients as to the true authorship of the elder abusematerial. [11] By individually targeting Brayton Purcell, aknown forum resident, Recordon expressly aimed its conductat the forum. The express aiming prong was satisfied. [12] The “foreseeable harm” element is satisfied when thedefendant’s intentional act has “foreseeable effects” in theforum. In this case, it was foreseeable that Brayton Purcellwould be harmed by infringement of its copyright, includingharm to its business reputation and goodwill, and decreasedbusiness and profits. It was also foreseeable that some of thisharm would occur in the forum, where Brayton Purcell wasknown to reside. Consequently, Brayton Purcell satisfied thethird and final element of the effects test. [13] Recordon wassubject to personal jurisdiction in the Northern District of Cal-ifornia. Thus, venue was proper in the Northern District of California pursuant to § 1404(a). The judgment of the districtcourt had to be affirmed.Judge Reinhardt dissented, writing that because Recordon’swebsite was targeted exclusively at the Southern District, itsconduct was clearly not expressly aimed at the Northern Dis-trict; thus, the “expressly aimed” test was not met, and venuedid not lie in the Northern District. COUNSEL Jacob D. Zamora, Law Office of Jacob D. Zamora, Marys-ville, California, for the defendant-appellant.David W. Fermino, Brayton Purcell LLP, Novato, California,for the plaintiff-appellee. 10392B RAYTON P URCELL v. R ECORDON & R ECORDON
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