Copyright Infringement Litigation and the Exercise of Personal Jurisdiction Within Due Process Limits: Judicial Application of Purposeful Availment, Purposeful Direction, or Purposeful Effects Requirements to Finding That a Plaintiff Has Established - Daniel E. Wanat
| Citation | Vol. 59 No. 2 |
| Publication year | 2008 |
Copyright Infringement Litigation and the Exercise of Personal Jurisdiction Within Due Process Limits: Judicial Application of Purposeful Availment, Purposeful Direction, or Purposeful Effects Requirements to Finding that a Plaintiff Has Established a Defendant's Minimum Contacts Within the Forum Stateby Daniel E. Wanat*
I. Introduction
An action for an infringement of a copyright secured under the United States Copyright Act1 may raise issues of copyright ownership, a defendant's access to a plaintiff's work, and substantial similarities between a plaintiff's work and a defendant's work.2 When raised, the issues bear on the merits of a plaintiff's copyright claim against a defendant.3
Suppose, however, that a copyright owner brought suit in the forum state against a nonresident defendant.4 The defendant's first defense may be based on the state's lack of personal jurisdiction.5 This defense implicates issues under the forum state's law and the Due Process Clause of the United States Constitution's Fifth Amendment.6
Resolution of the due process issue begins within the United States Supreme Court opinion in International Shoe Co. v. Washington1 and continues with that case's progeny.8 In general, when deciding if jurisdiction exists within due process limits, the Supreme Court asks whether a defendant's act purposefully establishes minimum contacts within the forum state.9
Among the considerations of the minimum contacts inquiry, indeed touchstones of this due process question, are the following: (1) whether the defendant acted with a purpose to avail himself or herself of the benefits and protections of the forum so that the defendant may expect to be haled into court there; (2) whether the defendant acted purposeful- ly, expressly aiming at causing effects (in other words, directing them) within the forum state; and (3) whether the defendant's purposeful availment, or aimed acts, caused harmful effects within the forum state.10
If the plaintiff is unable to show prima facie that the defendant's acts resulted in forum state purposeful availment, direction, or effects, the plaintiff's copyright infringement action will be dismissed for lack of personal jurisdiction.11 Thereafter, the plaintiff is left to find a constitutionally permissible forum state in which to bring the infringement suit.12
This Article examines copyright infringement cases in which federal courts have applied the jurisdictional due process concepts of purposeful availment, purposeful direction, and purposeful effects.13 Part III contains a general analysis of the copyright infringement and purposeful availment, direction, and effects case law.14 In Parts IV and V, two areas within the existing case law are treated discreetly. The first is purposeful availment, direction, and effects jurisprudence of federal courts within the Ninth Circuit.15 The second is a passive versus interactive analysis that federal courts apply to resolve purposeful availment, direction, or effects issues in copyright infringement cases concerning the Internet.16
Finally, in Part VI of the Article, the Author makes conclusions and comments on the state of the purposeful availment, direction, and effects requirements in copyright infringement litigation.17 Before exploring the relevant copyright infringement caselaw, Part II provides a primer of the purposeful availment, purposeful direction, and purposeful effects tests within due process limits by briefly visiting the decisions of the United States Supreme Court, beginning with International Shoe.
II. An Overview of United States Supreme Court Jurisprudence: Personal Jurisdiction; Due Process Limits; and Purposeful Availment, Purposeful Direction, or Purposeful Effects
A. International Shoe Co. v. Washington
In copyright litigation, when a federal court considers dismissing an infringement action for lack of personal jurisdiction over a nonresident defendant, its analysis begins with the Supreme Court's decision in International Shoe Co. v. Washington.18 In the Court's opinion, written by Chief Justice Stone, the question addressed was "whether, within the limitations of the due process clause of the Fourteenth Amendment. . a Delaware corporation . . . has by its activities in the [s]tate of Washington rendered itself amenable to proceedings in the courts of that state."19
In analyzing the due process issue, the Court acknowledged that, historically, a defendant's "presence within the territorial jurisdiction of [a] court was prerequisite to its rendition of a judgment personally binding him."20 Presence as a necessary condition to personal jurisdiction, however, was discarded by the Court in International Shoe when Justice Stone added:
[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with [the forum state] such
that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.21
Following the decision in International Shoe, presence within the forum state no longer marked due process limits. Rather, a court exercising jurisdiction over a defendant in personam may do so if the defendant's contacts with the forum state require that the defendant defend a suit there.22 When elaborating on its contacts framework, the Court emphasized those contacts that were "systematic and continuous."23 According to the Court, these contacts "justify suit ... on causes of action arising from dealings entirely distinct from those activities."24
The Court also recognized that a defendant exercising the "privilege" of acting within a state may incur obligations.25 The Court added, in substance, that so far as the defendant's obligations arise out of or are connected with its activities within the state, the defendant may be required to respond to the suit initiated to enforce those obligations.26
B. Hanson v. Denckla
Thirteen years after the Court adopted the minimum contacts approach in International Shoe, it returned to that subject in Hanson v. Denckla.27 In Hanson the issue was whether a Florida court erred in holding that the nonresident defendants were subject to personal jurisdiction.28
When considering this issue, Chief Justice Warren wrote that although "progress in communications and transportation has made the defense of a suit in a foreign tribunal less burdensome . . ., a defendant may not be called upon to do so unless he has had the 'minimal contacts' with that [s]tate that are a prerequisite to its exercise of power over him."29 When it considered those contacts, the Court made clear that "[t]he unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum [s]tate."30 Rather, "it is essential . . . that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum [s]tate, thus invoking the benefits and protections of its laws."31
The Court in Hanson recognized that the exercise of personal jurisdiction within due process limits required a finding that the defendant acted with a purpose to avail himself or herself of the forum state.32 The Court applied and refined Hanson on a number of occasions. The first of significance was World-Wide Volkswagen Corp. v. Woodson.33
C. World-Wide Volkswagen Corp. v. Woodson
World-Wide, a Volkswagen distributor, and Seaway, a Volkswagen retail seller, were both sued in Oklahoma, although neither did business in that state, nor did either "ship[] or sell[] any products to or in that [s]tate."34 When the Court applied the principles of International Shoe and Hanson, it determined that neither the distributor nor the dealer availed itself "of the privileges and benefits of Oklahoma law."35
The Court also distinguished between circumstances that would show a nonresident defendant availed itself of the forum and those in which the defendant foresaw its product's use in the forum state.36 According to the Court, "that a product will find its way into the forum [s]tate" is not "the foreseeability that is critical to due process. . . . Rather, it is that the defendant's conduct and connection with the forum [s]tate are such that he should reasonably anticipate being haled into court there."37
The Court added that a nonresident defendant "has clear notice that it is subject to suit there" when it "'purposefully avails itself of the privilege of conducting activities within the forum [s]tate.'"38 For the Court, the result on the jurisdictional issue in World-Wide was clear because evidence on the purposeful availment requirement demonstrated that the jurisdictional exercise violated the nonresident defendants' due process rights.39
After World-Wide, the Court continued to focus on a nonresident defendant's purpose in conducting activities connected to the forum state.40 However, the Court expanded that purpose from one in which the defendant purposefully availed himself or herself of the forum state's benefits to one in which the defendant purposefully aimed or directed his or her activities toward the forum state.41 This distinction surfaced before the Court in two cases, both decided on the same day in 1984.42
D. Keeton v. Hustler Magazine
In the first case, Keeton v. Hustler Magazine,43 the Court concluded that the court of appeals erred in holding that there was a lack of personal jurisdiction.44 In doing so, the Court quoted, with approval, the district court's findings.45 According to the district court, Hustler Magazine, the nonresident defendant, had "purposefully directed" the circulation of its magazines to New Hampshire, the forum state.46 As a result, the district court found that it was "unquestionable that New Hampshire jurisdiction over a complaint based on those contacts would ordinarily satisfy the requirement of the Due Process Clause."47
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