Re: [dvd-discuss] CA Supreme Court hears Pavlovich Jurisdiction Challenge in DVDCCA case

["James S. Tyre" <jstyre(at)jstyre.com>]

http://www.law.com/jsp/article.jsp?id=1030821170539

Rockets Fly Over DVD Encryption Case Jurisdiction

Shannon Lafferty
The Recorder
09-06-2002


The California Supreme Court seemed skeptical Thursday of arguments that an 
Indiana college student was immune from California law for posting computer 
code on the Web that unscrambles DVD encryption technology.

At least three justices appeared to warm to arguments that Matthew 
Pavlovich -- a former Purdue University student and Web master -- knew code 
on his Web site divulged trade secrets and violated copyrights affecting 
the motion picture and high-tech industries in California.

The case -- Pavlovich v. Superior Court, County of Santa Clara, S100809 -- 
is being closely watched because of the continuing uncertainty about state 
jurisdiction over the Internet. The court is grappling with whether 
California's long-arm statute can be applied when the Web is the medium for 
possible infringement.

In Thursday's argument, Pavlovich's attorney Allonn Levy argued that the 
trade secrets and copyright holder, DVD Copy Control Association Inc., 
could not sue in California because his client passively posted information 
and did not have substantial contact with California or expressly aim to 
harm industry here.

Both are requirements under the U.S Supreme Court's 1984 decision, Calder 
v. Jones 465 U.S. 783.

But Justices Marvin Baxter, Kathryn Mickle Werdegar and Ming Chin didn't 
seem to be biting.

"If a defendant launches a rocket from an eastern state headed westward 
with the intent of causing damage, does California then have jurisdiction?" 
Baxter asked.

"Shooting a rocket is expressly intentional activity. It is not passive," 
responded Levy, an associate at San Jose's Hopkins & Carley, which is 
handling the case pro bono.

Gregory Coleman, DVD Copy Control's attorney, argued that Pavlovich knew 
what he was doing harmed California's motion picture and technology 
industry -- thus meeting Calder's requirements.

"We agree that there should be aiming toward the forum," said Coleman, a 
Weil, Gotshal & Manges partner in its Houston office. "You don't have to 
put on the side of that rocket, 'California or bust,' to satisfy that 
requirement."

However, Janice Rogers Brown seemed unconvinced.

"Do we have any evidence in the record he was seeking to harm these 
industries specifically?" Brown asked. "What is it about what he did that 
makes it appropriate for California to exercise jurisdiction? If I picketed 
in front of my house with a sign, 'American car companies are terrible,' I 
can be sued in Michigan?"

But Coleman countered that if a California resident organized to sabotage 
an automobile factory, that would create jurisdiction.

DVD Copy Control first sued Pavlovich along with more than 500 other mostly 
John Doe defendants in Santa Clara County, Calif., Superior Court in 
December 1999 for trade secrets theft and copyright infringement.

Pavlovich, who now lives in Texas, fought jurisdiction. Both Santa Clara 
Superior Court Judge William Elfving and later the 6th District Court of 
Appeal determined jurisdiction was proper under California's long-arm statute.

The supreme court has also agreed to hear arguments in another appeal 
springing from the same trial court case. In DVD Copy Control Association 
Inc. v. Bunner, S102588, the high court will determine whether the 6th 
District Court of Appeal was correct in ruling that free speech rights on 
the Web trump trade secrets protections.

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James S. Tyre                               mailto:jstyre@jstyre.com
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Co-founder, The Censorware Project             http://censorware.net