A recent Ninth Circuit opinion sets out an expansive jurisdiction analysis. The case was for copyright infringement.
The opinion sets out the minimum contacts requirement for jurisdiction.
“This Court employs a three-prong test to determine whether a party has sufficient minimum contacts to be susceptible to specific personal jurisdiction:
(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum,
thereby invoking the benefits and protections of its laws;
(2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.”
The Court then discussed the first requirement, of purposeful direction or availment. A purposeful availment analysis applies to contract actions; a purposeful direction analysis applies to tort actions.
Since copyright infringement is characterized as a tort, purposeful direction is determined using the three-part “Calder-effects” test, taken from the U. S. Supreme Court’s decision in Calder v. Jones, 465 U.S. 783 (1984).
Under this test, “the defendant allegedly must have (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.”
The mere maintenance of a passive website alone cannot satisfy the express aiming requirement.
The express aiming requirement is satisfied when the defendant engaged in wrongful conduct targeted at a plaintiff, and the defendant knows the plaintiff is a resident of the forum state.
“By thus individually targeting Brayton Purcell, a known Forum resident, Recordon expressly aimed its conduct at the Forum. Assuming the dissent is correct that something more than knowledge of the residence of the plaintiff is required for there to be express aiming at the Forum, such a requirement is satisfied here; the parties are competitors in the same business so that the intentional infringement will advance the interests of the defendant to the detriment of the Forum interests of the plaintiff. The express aiming prong is therefore satisfied.”
The dissent argues that this was not enough.
“Pebble Beach and Schwarzenegger establish that knowledge of the plaintiff’s residence and a foreseeable harm to the plaintiff are, standing alone, insufficient to establish express aiming; ‘something more’ is required in order for the state of the plaintiff’s residence to constitute a proper forum.”
The opinion is available at Brayton Purcell v Recordon & Recordon.