New US appeals court decision related to data and Polish jurisdiction: Polish adult video website operator not subject to jurisdiction in U.S. in copyright action
In this case plaintiff AMA was a Nevada limited liability company that produces and distributes “adult entertainment over the Internet.” It owns several online websites where paying customers can view AMA’s materials. Its videos are copyrighted as audiovisual works. It also displays the company’s trademark in the corner of the screen.
Defendant was a citizen and resident of Poland, who operated ePorner, an adult video website, through MW Media, a Polish civil law partnership.
What is the case about?
AMA discovered that ePorner.com (“ePorner”), an international website where users can search for and watch adult movies displayed AMA copyrighted materials. At the time this lawsuit was filed ePorner allowed users to anonymously post adult videos. The website does not charge visitors. Instead of it, it generates revenue solely through advertising. Users of ePorner.com see ads based on their perceived location. For example, visitors who believe they are in the United States see selected ads in English.
AMA Multimedia, LLC (“AMA”) appealed the district court’s dismissal of its copyright infringement, trademark infringement, and unfair competition action against the defendant for lack of personal jurisdiction.
Important is the fact that AMA was unable to determine who owned and operated ePorner, so, AMA sued all defendants as Doe Defendants and Roe Corporations in the United States. The district court permitted AMA to conduct early discovery to ascertain who owned the domains which forwarded visitors to ePorner.com. Then AMA discovered that two companies located in Arizona, GoDaddy.com and Domains by Proxy, were used to register the domains and privatize the owner’s identity. The Polish defendant was the registrant of the domains.
Path to resolve the case
In the opinion of the district court, AMA has not met its burden of showing that the defendant is subject to personal jurisdiction in the United States under Federal Rule of Civil Procedure 4(k)(2), known as the “federal long-arm statute”. As the United States were not the focal point of the website in this case and the damage suffered, the defendant does not have the required minimum contacts with the United States. The district court denied AMA certain jurisdictional discovery and refused to consider arguments regarding changes in European law.
According to the court of appeals, the district court’s ruling is reasonable because AMA failed to meet its burden of showing that the Polish defendant was subject to personal jurisdiction in the United States, and the district court did not abuse its discretion in denying AMA certain jurisdictional information jurisdiction, and refused to consider arguments regarding changes in European law for the first time on appeal.
The plaintiff argued that the defendant was subject to specific personal jurisdiction in the United States because he expressly directed the tortious acts at the forum.
The panel found that the Respondent committed intentional acts by establishing and maintaining ePorner, registering two domains and contracting with a US domain name server, but did not expressly direct its conduct relating to the lawsuit to the United States. It also held that the district court did not abuse its discretion by limiting the scope of plaintiff’s jurisdictional discovery on the basis of privacy concerns.
The panel refused to consider, for the first time on appeal, the European Commission’s decision AMA MULTIMEDIA V. WANAT 3. It was known as “Privacy Shield Decision”, which established that Member States, including Poland, may transfer personal data to certain organizations in the United States. The Panel did not take into account the enactment of the General Data Protection Regulation by the European Parliament. This Regulation replaced the Polish Act on Personal Data Protection after this appeal was filed.
What was the judges’ opinion?
Justice Ilkuta, delivering his opinion, wrote that since the circuit court had no personal jurisdiction over the defendants, it only had the power to remove the case from the docket.
A similar view was held by Judge R. Nelson, whose opinion was that the district court was not precluded from exercising its discretion in reconsidering the case to include intervening law in any additional request for jurisdictional discovery or amendment of the complaint.
Judge Gould took the opposite view, holding that by accepting as true the undisputed facts asserted by the plaintiff and resolving all factual disputes in its favour, the defendant had targeted the United States in accordance with Calder’s “effects test”. In his opinion the United States had personal jurisdiction over defendant.
Summary:
The panel affirmed the district court’s dismissal for lack of personal jurisdiction of a copyright infringement, trademark infringement, and unfair competition action. Pursuant to Federal Rule of Civil Procedure 4(k)(2), the panel ruled that Defendant did not expressly target the United States in his conduct related to the lawsuit.
Sources:
AMA Multimedia, LLC v. Wanat, No. 18-15051 (9th Cir. 2020) :: Justia
