Case 2:10-cv-00351-LDG-PAL Document 12
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Filed 04/23/10 Page 1 of 20
Cassandra P. Joseph, Esq.
Nevada State Bar No. 9845
WATSON ROUNDS
5371 Kietzke Lane
Reno, NV 89511
Telephone: (775) 324-4100
Facsimile: (775) 333-8171
cjoseph@watsonrounds.com
John L. Krieger, Esq.
Nevada State Bar No. 6023
LEWIS AND ROCA LLP
3993 Howard Hughes Pkwy. Suite 600
Las Vegas, Nevada 89169
Telephone: (702) 949-8304
Facsimile: (702) 949-8365
JKrieger@LRLaw.com
Marc Randazza, Esq. (Pro Hac Vice
Application to be submitted within 7 days)
Randazza Legal Group
2 South Biscayne Boulevard, Suite 2600
Miami, Florida 33131
Telephone: (305) 479-2491
mjrp@me.com
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Attorneys for Defendant National
Organization for the Reform of
Marijuana Laws
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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Case No. 2:10-cv-00351-LDG-PAL
RIGHTHAVEN LLC, a Nevada limited
liability company,
)
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Plaintiff,
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v.
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NATIONAL ORGANIZATION FOR THE )
REFORM OF MARIJUANA LAWS, a
)
District of Columbia domestic nonprofit
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Corporation; MEDIA ACCESS PROJECT, )
INC., a California corporation,
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Defendants.
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DEFENDANT'S MOTION TO DISMISS
FOR LACK OF SUBJECT MATTER
JURISDICTION AND LACK OF
PERSONAL JURISDICTION
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Pursuant to Local Rule of Civil Practice 7-2, Defendant National Organization for the
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Reform of Marijuana Laws (“NORML”), by and through undersigned counsel, hereby moves
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this Court to Dismiss Plaintiff’s First Amended Complaint for Lack of Subject Matter
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Jurisdiction and Lack of Personal Jurisdiction. NORML submits this Memorandum of Points
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and Authorities in support of its Motion to Dismiss for Lack of Subject Matter Jurisdiction and
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Lack of Personal Jurisdiction.
MEMORANDUM OF POINTS AND AUTHORITIES
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Plaintiff Righthaven LLC alleges that NORML has infringed its copyrights in several
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news articles. NORML respectfully submits, however, that (1) this Court lacks jurisdiction
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over the subject matter of this case because Righthaven LLC is without standing to prosecute
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the alleged infringement and (2) this Court lacks jurisdiction over NORML because
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NORML’s limited contacts with the state of Nevada do not satisfy the demands of federal due
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process, and even if they did, the exercise of jurisdiction over NORML would be
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unreasonable.
I.
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STATEMENT OF UNDISPUTED FACTS
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Plaintiff Righthaven LLC (“Righthaven”) claims to be the owner, by assignment, of the
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copyright in the news article “Marijuana as Medicine,” published on August 30, 2009, as well
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as in several other literary works.1
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Marijuana Laws (“NORML”) is the owner of the websites <www.norml.org> and
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<www.norml.com>.
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“Marijuana as Medicine” by making the article accessible to the public through links provided
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on <www.norml.com>.
Defendant National Organization for the Reform of
Righthaven alleges that NORML has infringed its copyrights in
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Righthaven also claims to be the owner of the copyrights in the news articles “Dr. Reefer’s business goes to
pot,” published on March 30, 2009, and “Marijuana activists take stand against bill,” published on March 31,
2009. It has not submitted any proof of ownership, however. On the contrary, the evidence submitted by
Righthaven suggests that the newspaper in which these articles were first published, the Las Vegas ReviewJournal, owns the copyrights in these articles. (Plaintiff’s First Amended Complaint (“Pl.’s Compl.”), Ex. 1, 2.).
There is no proof of assignment in the record. Furthermore, while a search of the Copyright Office Catalog, a
public database of works registered or pre-registered since 1978, on April 22, 2010, revealed that Righthaven had
registered “Marijuana as Medicine,” no such registration was found for “Dr. Reefer’s business goes to pot” or
“Marijuana activists take stand against bill.” Decl. of John L. Krieger, ¶ 3 and 4.
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A. The Parties
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Righthaven, a Nevada limited-liability company that was incorporated on January 14,
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2010, has its principal place of business in Nevada. It appears that Righthaven entered into a
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contract with Stephens Media LLC (“Stephens Media”), the company that owns the newspaper
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Las Vegas Review-Journal (“LVRJ”), wherein Stephens Media assigned to Righthaven some
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or all of its exclusive rights in “Marijuana as Medicine.”2
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NORML is a nonprofit organization incorporated in the District of Columbia; its
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principal place of business is in Washington, DC. NORML has no physical presence in
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Nevada. It has no office and no employees in this state, nor is there an independently run
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chapter of the organization here.3 NORML’s only contact with Nevada is through its website,
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which provides information about marijuana laws throughout the U.S. to residents of all fifty
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states and all U.S. territories. In 2009, donations from Nevada accounted for only .01% of the
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total donations NORML received last year. In the first quarter of 2010, Nevada visitors
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accounted for only .07% of all “hits” at <norml.com>. Decl. of Allen St. Pierre, ¶ 8 and 9.
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Defendant Media Awareness Project (“MAP”) is a worldwide network dedicated to
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drug policy reform. MAP is the largest project of the nonprofit organization DrugSense.
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DrugSense is incorporated under the laws of California and has its principal place of business
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in California.
B. The Alleged Copyright Infringement
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NORML is the owner and registrant of the Internet domain names <norml.org> and
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<norml.com>. Approximately a decade ago, a representative of MAP, approached Allen F.
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St. Pierre, Executive Director of NORML, and offered to provide a daily news service for
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NORML's website. Decl. of Allen St. Pierre, ¶ 10. NORML eventually entered into an
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agreement with DrugSense, the California nonprofit organization that runs MAP, wherein
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DrugSense agreed to provide a news feed service for NORML's website <www.norml.com>.
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Righthaven has not provided the Court or NORML with a copy of the assignment agreement, despite an
informal request from counsel for NORML.
However, NORML has chapters in 37 states. Decl. of Allen St. Pierre, ¶ 4.
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In other words, NORML “subscribed” to MAP's “news feed.”4 MAP operates the Internet-
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based Drug News Archive (“Archive”), “a searchable database of uniformly formatted news
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and opinion pieces related to drug policy.” Tom O’Connell, DrugSense and The Media
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Awareness Project (MAP), The History of an Internet Activist Prototype, Heads Magazine,
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2001. These articles, available in their entirety on MAP's website, <www.mapinc.org>, are
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not authored by MAP; rather, they are aggregated from various sources by MAP and stored at
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<www.mapinc.org>. When an entity such as NORML subscribes to the MAP news feed,
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MAP provides links from the subscriber's website to the full text of the articles in the MAP
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Archive.
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The NORML website includes, near the bottom of its homepage, a news feed feature
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entitled “From the Wire.” As described above, this news feed provides links to news articles
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that are stored in the MAP Archive. When users click on links in the news feed, they are
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directed to webpages, hosted on MAP’s web server, where news articles are presented with a
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header and style that are similar to those of the NORML website.5 (See Pl.'s Compl. Ex. 1, 2,
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and 5.)
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On or before February 18, 2010, the MAP news feed made available through the
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NORML website a link to the text of “Marijuana as Medicine.” More than five months after
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the publication of the article, Righthaven obtained from the U.S. Copyright Office a certificate
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of registration dated March 5, 2010, for the work.6
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certificate, Righthaven filed the instant lawsuit against NORML, alleging that NORML had
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infringed its copyright in “Marijuana as Medicine” by posting the text of the article on its
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website. Righthaven seeks both preliminary and permanent injunctions prohibiting NORML
Ten days after the issuance of the
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Contrary to Righthaven's assertion, NORML did not induce MAP's alleged infringement of Righthaven's
copyrights. It merely subscribed to a feed that provided articles that were already stored on the MAP server.
NORML had no input regarding the selection of articles to be added to MAP's Drug News Archive.
“The process by which [a] webpage directs a user's browser to incorporate content from different computers
into a single window is referred to as 'in-line linking.'” Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 712
(9th Cir. 2007) (quoting Kelly v. Arriba Soft Corp., 336 F.3d 811, 816 (9th Cir.2003)). “The term “framing”
refers to the process by which information from one computer appears to frame and annotate the in-line linked
content from another computer.” Id. (quoting Perfect 10 v. Google, Inc., 416 F.Supp.2d 828, 833-34 (C.D.Cal.
2006)).
It is not clear from the record when Righthaven filed its application for registration.
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from reproducing the protected work, actual damages and profits with pre- and post-judgment
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interest, and the court-ordered transfer of ownership of the norml.com domain to Righthaven.7
II.
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LEGAL STANDARDS
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Subject matter jurisdiction and personal jurisdiction are constitutional prerequisites to
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the adjudication of any claim. Lack of subject matter jurisdiction is an absolute affirmative
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defense that cannot be waived, and a court has no discretion to adjudicate a claim where
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subject matter jurisdiction does not lie.
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(“subject-matter jurisdiction, because it involves a court's power to hear a case, can never be
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forfeited or waived.”). A decision on the merits in such a case is void. See Gonzalez v.
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Crosby, 545 U.S. 524, 534 (2005) (“[A] absence of jurisdiction altogether deprives a federal
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court of the power to adjudicate the rights of the parties.”).
See U.S. v. Cotton, 535 U.S. 625, 630 (2002)
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With respect to personal jurisdiction, a plaintiff submits to the jurisdiction of a forum
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by filing suit there. However, when a defendant asserts lack of personal jurisdiction as an
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affirmative defense pursuant to Federal Rule of Civil Procedure 12(b)(2), a court must satisfy
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itself of jurisdiction before proceeding to the merits of the case. The court may find that it has
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general personal jurisdiction, specific personal jurisdiction, or no personal jurisdiction at all.
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Boschetto v. Hansing, 539 F.3d 1011, 1016 (9th Cir. 2008) cert. den. 129 S.Ct. 1318 (2009).
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If the court concludes that it lacks jurisdiction over the defendant, it has no discretion to
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proceed to the merits of the case.
III.
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SUMMARY OF ARGUMENT
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Righthaven’s claims against NORML must be dismissed for lack of subject matter
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jurisdiction and lack of personal jurisdiction. Righthaven lacks standing to bring this action
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because it has failed to show that it was the owner of the copyrights in “Marijuana as
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Medicine,” “Dr. Reefer’s business goes to pot” and “Marijuana activists take stand against
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bill” at the time the alleged infringement of those rights occurred. In fact, the evidence shows
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NORML is prepared to stipulate to the injunction. The transfer of its domain, however, is an illegitimate
request for relief, and NORML will move to strike it under separate motion. The actual damages to Righthaven
were likely less than $100.
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that Righthaven is not even the current owner of the copyrights in “Dr. Reefer’s business goes
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to pot” and “Marijuana activists take stand against bill.” These defects deprive the court of
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jurisdiction over the subject matter of this case. Additionally, as explained below, NORML’s
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contacts with Nevada are insufficient to confer personal jurisdiction on this Court,
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notwithstanding Righthaven’s conclusory statements to the contrary. Accordingly, the Court
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is without discretion to adjudicate Righthaven’s claims against NORML.
IV.
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ARGUMENT
A. The Court Lacks Subject Matter Jurisdiction in this Case.
1.
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Righthaven lacks standing to prosecute its claims of copyright
infringement.
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As a general rule, “[t]he legal or beneficial owner of an exclusive right under a
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copyright is entitled to bring actions for infringements of that right occurring during the period
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of its ownership.” ABKCO Music, Inc. v. Harrisongs Music, Ltd., 944 F.2d 971, 980 (2d Cir.
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1991) (quoting 17 U.S.C. § 501(b)) (emphasis added); Pye v. Mitchell, 574 F.2d 476, 479 (9th
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Cir. 1978) (“Only the proprietor of statutory copyright at the time of acts of infringement is
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entitled to damages under 17 U.S.C. § 101.”). “Ownership of a copyright may be transferred
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in whole or in part by any means of conveyance,” and “[t]he owner of any particular exclusive
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right is entitled, to the extent of that right, to all the protection and remedies accorded to the
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copyright owner.” 17 U.S.C. § 201(d)(1)-(2).
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A plaintiff who fails to show ownership of a valid copyright at the time of infringement
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lacks standing to sue for any infringement that occurred prior to assignment of the copyright.
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See Silvers v. Sony Pictures Entertainment, Inc., 402 F.3d 881, 885 (9th Cir. 2005) (outlining
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the requirements for standing to sue for copyright infringement).
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copyright claim is a jurisdictional requirement, and the Court must dismiss an action for lack
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of subject matter jurisdiction if it determines the plaintiff lacks standing.” Giddings v. Vision
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House Production, Inc., 584 F.Supp.2d 1222, 1229 (D.Ariz. 2008) (citing Lewis v. Casey, 518
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U.S. 343, 349 n.1 (1996)).
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“Standing to assert a
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In this case, while Righthaven has adduced evidence that it is now the owner of a valid
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copyright in “Marijuana as Medicine,” that evidence shows that Righthaven is not the original
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owner, but rather an assignee of that copyright. (Pl.’s Compl. Ex. 4. (“Transfer: By written
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agreement.”).) Righthaven has failed, however, to show that it was the owner of the copyright
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in “Marijuana as Medicine” when the alleged infringement occurred, and it has not submitted
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any proof whatsoever that it has ever owned the copyrights in “Dr. Reefer’s business goes to
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pot” and “Marijuana activists take stand against bill.” The copyright notice on each of these
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articles, as shown in Righthaven’s Exhibits 1, 2, 3, and 5, indicates that LVRJ was the
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copyright owner at the time the articles were made available in the MAP news feed. Under
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these circumstances—and absent more—the Court cannot satisfy itself that Righthaven has
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standing to prosecute its claims of copyright infringement against NORML; nor can it,
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therefore, satisfy itself of subject matter jurisdiction.
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B. The Court Lacks Jurisdiction Over NORML Because NORML’s Contacts with
Nevada are Insufficient to Satisfy the Requirements of Federal Due Process.
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The basis for personal jurisdiction in Nevada over a non-Nevada resident is set forth in
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the Nevada long-arm statute. That statute is coextensive with the Due Process Clause of the
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U.S. Constitution. See Nev. Rev. Stat. § 14.065. Thus, in determining whether the exercise of
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jurisdiction over a non-Nevada resident by a Nevada court is proper, the federal due process
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analysis applies.
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In the case of a corporate defendant, the requirement of “presence” in the forum state
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“may be met by such contacts of the corporation with the state of the forum as make it
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reasonable, in the context of our federal system of government, to require the corporation to
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defend the particular suit which is brought.” International Shoe Co. v. Washington, 326 U.S.
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310, 316-17 (1945).
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Where a defendant is not physically present in the forum state but maintains a website
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that is accessible to forum residents, the Ninth Circuit and the District of Nevada apply the
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“sliding scale” test articulated in Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F.
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Supp. 1119, 1124 (W.D.Pa. 1997), to determine whether personal jurisdiction lies in the forum
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state. See Gator.com Corp. v. L.L. Bean, Inc., 341 F.3d 1072, 1079-80 (9th Cir. 2003)
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(applying the sliding scale test to determine whether personal jurisdiction existed); Medinah
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Mining, Inc. v. Amunategui, 237 F. Supp. 2d 1132, 1135-38 (D.Nev. 2002) (applying both the
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sliding scale test and the “effects test” to determine whether personal jurisdiction existed).
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Under this test, “the likelihood that personal jurisdiction can be constitutionally exercised is
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directly proportionate to the nature and quality of commercial activity that [the defendant]
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conducts over the Internet.” Zippo, 952 F. Supp. at 1124 (emphasis added). More specifically,
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[a]t one end of the spectrum are situations where a defendant clearly does
business over the Internet. If the defendant enters into contracts with residents
of a foreign jurisdiction that involve the knowing and repeated transmission of
computer files over the Internet, personal jurisdiction is proper. At the opposite
end are situations where a defendant has simply posted information on an
Internet Web site which is accessible to users in foreign jurisdictions. A
passive Web site that does little more than make information available to those
who are interested in it is not grounds for the exercise personal jurisdiction.
The middle ground is occupied by interactive Web sites where a user can
exchange information with the host computer. In these cases, the exercise of
jurisdiction is determined by examining the level of interactivity and
commercial nature of the exchange of information that occurs on the Web site.
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Zippo, 952 F. Supp. at 1124 (citations omitted).
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1. The Court lacks general personal jurisdiction over NORML because
NORML does not have substantial contacts with Nevada.
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The principle underlying general personal jurisdiction is fundamental fairness: a non-
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resident defendant whose contacts with the forum state are “continuous and systematic” should
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not escape the judicial reach of the forum merely because it is not incorporated there or
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otherwise physically present. Thus, “[e]ven when the cause of action does not arise out of or
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relate to the foreign corporation's activities in the forum State, due process is not offended by a
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State's subjecting the corporation to its in personam jurisdiction when there are sufficient
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contacts between the State and the foreign corporation.”
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Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984). Conversely, fairness and reasonableness
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dictate that a corporation with only attenuated or sporadic contacts with the forum should not
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be called upon to defend itself there. Burger King v. Rudzewicz, 471 U.S. 462, 475 (1985);
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Sher v. Johnson, 911 F.2d 1357, 1362 (9th Cir. 1990) (holding that personal jurisdiction could
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Helicopteros Nacionales de
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not be exercised over individual partners within a partnership absent evidence of their contacts
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with the forum state).
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The standard for general jurisdiction is high: “the . . . commercial activity must be of a
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substantial enough nature that it ‘approximate[s] physical presence.’” Gator.com, 341 F.3d at
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1079 quoting Bancroft & Masters, Inc. v. Augusta Nat. Inc., 223 F.3d 1082, 1086 (9th Cir.
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2000). Accordingly, the Ninth Circuit has drawn a distinction between “doing business in” the
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forum state and “doing business with” the forum state. Bancroft, 223 F.3d at 1086. “Factors
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to be taken into consideration are whether the defendant makes sales, solicits or engages in
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business in the state, serves the state’s markets, designates an agent for service of process,
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holds a license, or is incorporated there.” Id.
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No court has exercised general personal jurisdiction over a defendant based solely on
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that defendant’s Internet presence in the forum state. Moreover, while the court in Gator.com
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observed in dictum that “even if the only contacts [the defendant] had with California were
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through its virtual store, a finding of general jurisdiction in the instant case would be
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consistent with the ‘sliding scale’ test,” the website at issue in that case was “clearly and
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deliberately structured to operate as a sophisticated virtual store in California.” Gator.com,
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341 F.3d at 1078. The plaintiff had alleged that the defendant, a Maine corporation, operated
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“a highly interactive, as opposed to “passive,” website from which very large numbers of
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California consumers regularly make purchases and interact with [the defendant's] sales
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representatives.”8 Id. The holding of Gator.com was based on the totality of the defendant’s
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contacts with California, which included a thriving mail-order component and national print
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and broadcast advertising.
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In some instances, even where a defendant maintains an interactive website and has
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other contacts with the forum state, courts have declined to find personal jurisdiction. For
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example, in Boschetto v. Hansing, the Ninth Circuit noted in dictum that “[t]he district court
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summarily, and correctly, rejected Boschetto’s contention that the Defendants could be subject
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The Ninth Circuit noted that “[i]n 2000, [the defendant’s] website sales accounted for over two hundred million,
or about 16 percent, of its total sales.” Gator.com, 341 F.3d at 1074.
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to general jurisdiction in California.” 539 F.3d 1011, 1016 n.2 (9th Cir. 2008). At the trial
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level in Boschetto v. Hansing, No. C-06-1390, 2006 WL 1980383 (N.D.Cal. 2006), an
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unpublished opinion,9 the plaintiff, a California resident, argued that the non-resident
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defendants were subject to general personal jurisdiction in California because their website
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could be accessed from within the state. The defendants had allegedly sold, via an Internet
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auction on eBay.com, defective vehicles to the plaintiff. Id. at *1.
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In this case, NORML is not physically present in Nevada. Decl.of Allen St. Pierre, ¶ 6.
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It is not incorporated here, nor does it maintain an office or have any employees here. Id. It
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has not designated an agent for service of process in the state. Id. There is no Nevada chapter
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of the organization. Id. The national print and broadcast advertising present in Gator.com is
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absent in this case. The only “presence” that NORML has in the state is its website, which is
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accessible to residents of Nevada in the same way that it is accessible to users anywhere in the
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free world. The court must first determine, therefore, where along the sliding scale NORML's
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website falls.10 If it is passive, it is “not grounds for the exercise of personal jurisdiction.”
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Zippo Mfg. Co., 952 F.Supp. at 1124. If, however, NORML “clearly does business over the
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Internet,” personal jurisdiction is proper. If NORML's website is somewhere in the middle,
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the court must consider “the level of interactivity and the commercial exchange of information
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that occurs on the Web site.” Id.
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The NORML website falls somewhere in the middle of the Zippo sliding scale.
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Although the website has some interactive aspects, such as drop-down menus for selecting
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state-specific information and a small web store that sells a very limited range of merchandise,
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<norml.com> is a far cry from the “sophisticated virtual store” at issue in Gator.com. It is not
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a “highly interactive website . . . from which very large numbers of [forum state] consumers
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regularly make purchases and interact with [the defendant’s] sales representatives.” The
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Although the district court’s decision was not published, the Court of Appeals’ opinion was. We cite the
unpublished district court opinion only for factual background and do not rely on the holding of that case.
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Some courts do not apply the sliding scale analysis to general jurisdiction. E.g., Revell v. Lidov, 317 F.3d 467,
471 (5th Cir. 2002) (“While we deployed this sliding scale in Mink v. AAAA Development LLC, it is not well
adapted to the general jurisdiction inquiry . . . .”).
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NORML website is designed to disseminate information, completely free of charge, to people
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located anywhere in the U.S. and, indeed, anywhere in the world. Decl. of Allen St. Pierre, ¶
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8.
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Even assuming that the NORML website is highly interactive, this interactivity does
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not lead to substantial contacts in Nevada. In terms of commercial activity, NORML solicits
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donations and sells a very limited range of merchandise on its website. This conduct is
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ancillary to the central purpose of the website, however, and is more akin to a tip jar than to a
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principal means of commerce. The core purpose of the website—and of NORML's existence
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as a nonprofit organization—is to raise awareness about marijuana laws in the United States
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and its territories, not to engage in commerce. Decl. of Allen St. Pierre, ¶ 8. Additionally, any
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actual commerce conducted with Nevada residents, through donations, sales of merchandise or
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both, is not substantial enough to approximate physical presence in Nevada.
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donations from Nevada accounted for only .01% of total donations NORML received. Decl.of
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Allen St. Pierre, ¶ 8. This stands in stark contrast to the millions of dollars generated by the
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defendant in Gator.com through its website.
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<norml.com> simply does not rise to the level of “clearly doing business.” Furthermore, the
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infringement alleged here is based in passive, non-commercial content. As such, general
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personal jurisdiction over NORML does not lie.
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In 2009,
Therefore, the activity engaged in via
2. The Court lacks specific personal jurisdiction over NORML.
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In the absence of general personal jurisdiction, a court may avail itself of specific
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personal jurisdiction. The Ninth Circuit employs a three-pronged test to determine whether
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the exercise of specific jurisdiction over a non-resident is appropriate:
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(1) The non-resident defendant must purposefully direct his activities or
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consummate some transaction with the forum or resident thereof; or perform
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some act by which he purposefully avails himself of the privilege of conducting
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activities in the forum, thereby invoking the benefits and protections of its laws;
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(2) the claim must be one which arises out of or relates to the defendant's
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forum-related activities; and
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(3) the exercise of jurisdiction must comport with fair play and substantial
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justice, i.e. it must be reasonable.
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Boschetto, 539 F.3d at 1016. The plaintiff bears the burden of proving the first two prongs.
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Id.
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purposeful activity within the forum state, the burden then shifts to the defendant to “come
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forward with a ‘compelling case’ that the exercise of jurisdiction would not be reasonable.”
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Id.
If the plaintiff succeeds in establishing that the claim arose out of the defendant's
8
In Calder v. Jones, 465 U.S. 783 (1984), the Supreme Court announced the so-called
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“effects” test for determining when specific personal jurisdiction lies. That test requires (1) an
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intentional act that is (2) expressly aimed at the forum state and (3) causes injury that the
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defendant knows is likely to be suffered in the forum state. See Brayton Purcell LLP v.
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Recordon & Recordon, 575 F.3d 981, 986 (9th Cir. 2009). In Calder, which involved the
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publication of allegedly libelous stories about the plaintiff, the Court held that where
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“California [wa]s the focal point both of the story and of the harm suffered[, j]urisdiction over
15
petitioners [wa]s therefore proper in California based on the “effects” of their Florida conduct
16
in California.” 465 U.S. at 789. The Ninth Circuit has applied this test in the context of a
17
copyright infringement claim, finding that where a defendant “willfully infringed copyrights
18
owned by [the plaintiff], which, as [the defendant] knew, had its principal place of business in
19
the Central District [of California],” “[t]his fact alone is sufficient to satisfy the “purposeful
20
availment” requirement.”
21
Birmingham, Inc., 106 F.3d 284, 289 (9th Cir. 1997) rev'd on other grounds Feltner v.
22
Columbia Pictures Television, Inc., 523 U.S. 340 (1998).
Columbia Pictures Television v. Krypton Broadcasting of
23
The Ninth Circuit “construe[s] ‘intent’ . . . as referring to an intent to perform an
24
actual, physical act in the real world, rather than an intent to accomplish a result or
25
consequence of that act.” Brayton Purcell, 575 F.3d at 986 (internal quotations omitted).
26
Thus, in Brayton Purcell the court found that the defendant “committed an intentional act
27
when it created and posted an elder law section on its website that infringed [the plaintiff's]
28
copyright. In our case, NORML concedes that it performed an intentional act when, through a
12
Case 2:10-cv-00351-LDG-PAL Document 12
Filed 04/23/10 Page 13 of 20
1
third-party news feed provider based in California, it linked to articles to which Righthaven
2
subsequently obtained the copyright.
3
requirement of the effects test is not satisfied in this case.
4
a.
5
It is clear, however, that the “express aiming”
NORML has not purposefully directed its conduct at
Nevada.
6
As explained above, NORML's website falls somewhere between the “passive” and
7
“clearly doing business” ends of the sliding scale. Interactivity alone, however, is insufficient
8
to confer specific jurisdiction in this situation.
9
specifically directed at Nevada residents for personal jurisdiction to be proper.
NORML’s website activities must be
See
10
Millennium Enterprises, Inc. v. Millennium Music, LP, 33 F.Supp.2d 907, 921 (D.Or. 1999)
11
(declining to exercise jurisdiction where “plaintiff offers no evidence that defendants targeted
12
Oregon residents with the intent or knowledge that plaintiff could be harmed through their
13
Web site,” notwithstanding that forum residents could make purchases on defendant’s
14
website). If NORML specifically targets the content relevant to this case at Nevada residents,
15
then it may be subject to personal jurisdiction in Nevada. See Calder v. Jones, 465 U.S. 783,
16
790 (1984); Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 803 (9th Cir. 2004);
17
Sinatra v. Nat’l Enquirer, Inc., 854 F.2d 1191, 1195 (9th Cir. 1988). The Ninth Circuit has
18
held that “individualized targeting” is sufficient to satisfy the express aiming requirement.
19
Brayton Purcell LLP v. Recordon & Recordon, 575 F.3d 981, 988 (9th Cir. 2009). In Brayton
20
Purcell, the court found purposeful direction where the defendant, a southern California law
21
firm, had copied text from the website of the plaintiff, a northern California law firm whose
22
practice extended to southern California, and pasted that text verbatim on its own website.
23
The court reasoned that this individual targeting of a known forum resident, which allegedly
24
created competition for the plaintiff and confusion as to authorship of the text, amounted to
25
express aiming.
26
defendant’s actions are insufficient to confer jurisdiction, additional contacts must be present.
27
See Calder, 465 U.S. at 790; Schwarzenegger, 374 F.3d at 803; Sinatra, 854 F.2d at 1195.
Brayton Purcell, 575 F.3d at 987.
28
13
However, where the effects of the
Case 2:10-cv-00351-LDG-PAL Document 12
Filed 04/23/10 Page 14 of 20
1
In our case, any actual commerce conducted with Nevada residents, through donations,
2
sales of merchandise or both, is de minimus and did not specifically target Nevada residents.
3
Decl. of Allen St. Pierre, ¶ 8. The services and information it provides to Nevada’s residents
4
are no different from those it provides to residents of New York, California, or any number of
5
other states. Nevada receives no better or worse treatment by NORML, nor is there any
6
indication at norml.com that the website’s information is specifically tailored to Nevada
7
residents more than those of any other state. NORML has not, therefore, expressly aimed its
8
conduct at Nevada. Nor has NORML engaged in the individual aiming found in Brayton
9
Purcell. In that case, the defendants copied the plaintiff’s work verbatim, placing themselves
10
in direct competition with the plaintiff in a district where both the plaintiff and the defendants
11
did business. In our case, NORML has, at most, provided a link to material hosted and
12
provided by a non-Nevada source for the purpose of informing the public about marijuana law
13
and policy. In addition, in Brayton Purcell, as in other cases, there was a commercial element
14
to the defendants’ activities. In our case, that commercial element is lacking, as NORML
15
received no compensation for providing access to the link.
16
With respect to the third requirement of the effects test, foreseeable harm, “this
17
element is satisfied when defendant's intentional act has 'foreseeable effects' in the forum.”
18
Brayton Purcell, 575 F.3d at 988. “[T]his element does not require that the 'brunt' of the harm
19
be suffered in the forum, as some previous cases had suggested, and that this element may be
20
established even if 'the bulk of the harm' occurs outside the forum.” Id. (citing Yahoo! Inc. v.
21
La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199, 1207 (9th Cir. 2006)).
22
However, “the foreseeability that is critical to due process analysis . . . is that the defendant's
23
conduct and connection with the forum State are such that he should reasonably anticipate
24
being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
25
(1980). “The unilateral activity of those who claim some relationship with a nonresident
26
defendant cannot satisfy the requirement of contact with the forum State.”
27
Denckla, 357 U.S. 235, 253 (1958).
28
14
Hanson v.
Case 2:10-cv-00351-LDG-PAL Document 12
Filed 04/23/10 Page 15 of 20
1
In the case at bar, NORML had no knowledge that the copy of “Marijuana as
2
Medicine” stored on the MAP server was an infringing copy. In fact, all indications were that
3
the copy was legitimate. MAP claimed that it had rights to reproduce the articles. Decl. of
4
Allen St. Pierre, ¶ 14. MAP presented the articles in full “wire service” format. In short, there
5
was no way for NORML to know that MAP was infringing Righthaven’s copyrights
6
(assuming, arguendo, that it was).
7
Even assuming that NORML had actual or constructive knowledge that the copies
8
were infringing, the owner of the copyrights could have been located anywhere in the world, in
9
the same way that the defective vehicle at issue in World-Wide Volkswagen, sold in New York
10
and fortuitously driven to Oklahoma, could foreseeably have found its way to Oklahoma,
11
where it caused injury. The Court in Volkswagen rejected this type of foreseeability as a basis
12
for jurisdiction. Thus, NORML has not purposefully directed its activities at Nevada in a way
13
that would justify the exercise of specific jurisdiction in this case.
14
b.
15
Righthaven’s claims did not arise out of NORML’s Nevadarelated activities.
16
In order for the Nevada Court to exercise specific personal jurisdiction over NORML
17
in our case, the claim at issue, copyright infringement, must have arisen from or be related to
18
NORML's Nevada-related activities. The Ninth Circuit applies a “but for” test in determining
19
whether a claim arose from a defendant's contacts with the forum state. Ballard v. Savage, 65
20
F.3d 1495, 1500 (9th Cir.1995).
21
plaintiff's injury would not have occurred, the “arising out of” requirement is satisfied. See
22
Harris Rutsky & Co. Ins. Services, Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1131-32 (9th
23
Cir. 2003).
If, but for the defendant's forum-related activities, the
24
Trial courts in the Ninth Circuit have applied this test in the intellectual property
25
context where Internet activity is involved. In Allstar Marketing Group, LLC v. Your Store
26
Online, LLC, 666 F.Supp.2d 1109 (C.D.Cal. 2009), for example, the court found that the
27
plaintiff's trademark infringement claim arose out of the defendant's sale, through its website,
28
of allegedly infringing items. 666 F.Supp.2d at 1123. In Brayton Purcell LLP v. Recordon &
15
Case 2:10-cv-00351-LDG-PAL Document 12
Filed 04/23/10 Page 16 of 20
1
Recordon, the district court held that the “arising out of” requirement was satisfied where
2
“[b]ut for [the defendant’s] copyright infringement, which reached into this District and which
3
affected [the plaintiff] in this District, [the plaintiff’s] claim would not have arisen” 361
4
F.Supp.2d 1135, 1143 (N.D.Cal. 2005)).
5
In this case, the but-for test is not satisfied; therefore, it cannot be said that
6
Righthaven’s claims arose out of NORML’s Nevada-related activities. Although NORML
7
operates a website that is accessible to Nevada residents, Righthaven would have suffered the
8
underlying injury, copyright infringement, even if NORML had no website at all. It was MAP
9
that copied “Marijuana as Medicine” and placed links to the article on the websites of its news
10
feed subscribers. There is no evidence that any Nevada residents accessed the article, and
11
given the minimal access by Nevada residents to the website at all, this appears unlikely.
12
Furthermore, and contrary to the logic of Brayton Purcell, if NORML had in fact infringed
13
Righthaven’s rights in “Marijuana as Medicine” by linking to the article and were somehow to
14
exclude Nevada residents from accessing its website, copyright infringement—a federal cause
15
of action—would still have occurred. For these reasons, NORML respectfully submits that
16
Righthaven’s claims against NORML did not “arise out of” NORML’s Nevada-related
17
activities, and as a result, specific personal jurisdiction does not lie.
18
c.
19
The exercise of specific jurisdiction by this Court would not
be reasonable.
20
A finding of jurisdiction in this case could subject NORML and other organizations
21
that provide similar information over the internet to specific personal jurisdiction in all fifty
22
States and the U.S. territories. An exercise of jurisdiction over a defendant must comport with
23
notions of substantive justice and fair play and must be reasonable. Boschetto, 539 F.3d at
24
1016.
25
jurisdiction: (1) the extent of a defendant's purposeful interjection; (2) the burden on the
26
defendant in defending in the forum; (3) the extent of conflict with the sovereignty of the
27
defendant's state; (4) the forum state's interest in adjudicating the dispute; (5) the most efficient
28
judicial resolution of the controversy; (6) the importance of the forum to the plaintiff's interest
The Ninth Circuit considers seven factors when assessing the reasonableness of
16
Case 2:10-cv-00351-LDG-PAL Document 12
Filed 04/23/10 Page 17 of 20
1
in convenient and effective relief; and (7) the existence of an alternative forum. Rio Props.,
2
Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1021 (9th Cir. 2002); Core-Vent Corp. v. Nobel
3
Indus. AB, 11 F.3d 1482, 1488 (9th Cir. 1993). Courts weigh each of these factors, and no
4
single factor on its own is dispositive. Rio Props., 284 F.3d at 1021.
5
Often, the first factor, “interjection” is highly material to the court’s determination
6
regarding the reasonableness of exercising jurisdiction in a particular case. In Rio Properties,
7
the Ninth Circuit upheld the District of Nevada’s finding that its exercise of specific
8
jurisdiction was reasonable because Rio International, based in Costa Rica, ran advertisements
9
in Nevada and solicited business there through means other than its website. Id. Moreover, the
10
plaintiff’s principal place of business was in Nevada, making it a convenient forum for
11
litigation, and Rio International had not proposed any alternative forum for litigation. Id.
12
Almost all of the factors on which the Ninth Circuit and District of Nevada have
13
predicated any finding of specific personal jurisdiction are absent in this case. Certainly, the
14
most important of the Rio factors weigh in NORML’s favor. First, NORML simply has not
15
interjected itself into the District of Nevada on a level that gives rise to specific personal
16
jurisdiction. At best, it has reached into the state via limited interactive features on a less-than-
17
sophisticated website.
18
unrelated to the issue being litigated. Additionally, unlike the defendant in Rio Properties,
19
NORML did not reach out beyond the Internet and take additional steps, such as advertising,
20
that would constitute “interjection” into the forum state. The Rio Properties court based its
21
finding of personal jurisdiction upon Rio International’s advertising in Nevada, while NORML
22
has not undertaken any specific advertising in Nevada, and especially not in relation to the
23
copyrights Righthaven claims it has violated.
Those aspects are minimal compared to its passive content and
24
Second, because NORML has virtually no contacts with Nevada, it would suffer severe
25
hardship in terms of cost and asymmetries of information if forced to defend a lawsuit in the
26
District of Nevada. Decl. of Allen St. Pierre, ¶ 15. NORML would have to retain outside
27
counsel to represent it in Nevada. All of NORML’s evidence, including testimony, is located
28
outside of Nevada; thus, NORML would incur significant costs to produce this evidence at
17
Case 2:10-cv-00351-LDG-PAL Document 12
Filed 04/23/10 Page 18 of 20
1
trial. Id. It would be plainly unfair for NORML to be called on to defend itself in a forum
2
with which it has no contacts and in which it did not anticipate causing injury, especially when
3
all of its employees are in the District of Columbia and the direct infringer, MAP, is in
4
California. Related to this is the fifth factor, the efficient resolution of this dispute. Because
5
virtually all of the testimonial and most of the documentary evidence in this matter is located
6
in the District of Columbia, it would be more efficient for the District of Columbia court to
7
resolve the case.
8
NORML concedes that there is no risk of conflict with the sovereignty of the District
9
of Columbia as the claim asserted is a federal one. This factor, therefore, is neutral in this
10
case. NORML also concedes that the District of Nevada has some interest in determining the
11
rights of its citizens. Nevada has no greater interest in doing so, however, than does the
12
District of Columbia. With respect to the importance of the forum to the plaintiff's interest in
13
convenient and effective relief, both this Court and the District of Columbia court have the
14
power, under the Constitution and the laws of the United States, to provide effective relief for
15
copyright infringement. It would be easier to enforce certain kinds of relief, however—for
16
example, the injunctive relief sought by Righthaven—in the District of Columbia because of
17
NORML’s presence there. Thus this factor weighs against the exercise of jurisdiction by this
18
court. Finally, an alternative forum for adjudication exists in the District of Columbia, where
19
NORML is based and where most of the evidence in this matter is situated. This factor, too,
20
weighs against the exercise of jurisdiction by this court.
21
For these reasons, even assuming that NORML has purposefully directed its activities
22
at Nevada residents and that the infringement of Righthaven’s copyrights arose out of those
23
activities, it would not be reasonable for this court to exercise specific personal jurisdiction
24
over NORML in this case.
25
V.
CONCLUSION
26
In sum, this court lacks jurisdiction over the subject matter of this case because
27
Righthaven has no standing to prosecute its claims of copyright infringement. The court also
28
lacks jurisdiction over NORML. Because the court is without discretion to hear an action over
18
Case 2:10-cv-00351-LDG-PAL Document 12
Filed 04/23/10 Page 19 of 20
1
which it has no jurisdiction, NORML respectfully requests that the court dismiss Righthaven’s
2
claims against it.
3
4
5
6
7
8
9
Dated: April 23, 2010
/s/ Cassandra P. Joseph
Cassandra P. Joseph, Esq.
WATSON ROUNDS
5371 Kietzke Lane
Reno, NV 89511
John L. Krieger, Esq.
LEWIS AND ROCA LLP
3993 Howard Hughes Pkwy. Suite 600
Las Vegas, Nevada 89169
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11
12
13
14
15
Marc Randazza, Esq.
(Pro Hac Vice application to be submitted)
Randazza Legal Group
2 South Biscayne Boulevard, Suite
2600 Miami, Florida 33131
Attorneys for Defendant National
Organization for the Reform of
Marijuana Laws
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28
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Case 2:10-cv-00351-LDG-PAL Document 12
CERTIFICATE OF SERVICE
1
2
3
4
5
Filed 04/23/10 Page 20 of 20
Pursuant to FRCP 5(b), I certify that I am an employee of the Law Offices of Watson
Rounds, and on this date, a true and correct copy of the foregoing document,
DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER
JURISDICTION AND LACK OF PERSONAL JURISDICTION
6
was served upon the following individuals via the Court’s electronic filing system.
7
Steven A. Gibson
sgibson@righthaven.com
J. Charles Coons
ccoons@righthaven.com
Righthaven LLC
9960 West Cheyenne Avenue, Suite 210
Las Vegas, Nevada 89129-7701
8
9
10
11
12
/s/ Carla Ousby
Carla Ousby
Dated: April 23, 2010
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