IP Law Daily Polish adult video website operator not subject to jurisdiction in U.S. in copyright action
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Tuesday, August 18, 2020

Polish adult video website operator not subject to jurisdiction in U.S. in copyright action

By Brian Craig, J.D.

The United States was not the focal point of an adult website, and the Polish citizen who operated the website did not purposefully direct his activities at the United States.

A citizen and resident of Poland who operated an adult video website that allegedly infringes copyrighted adult videos is not subject to specific personal jurisdiction in the United States, the U.S. Court of Appeals for the Ninth Circuit has held. In affirming the district court’s dismissal for lack of personal jurisdiction over the Polish citizen, the Ninth Circuit held that because the United States was not the focal point of the website and of the harm suffered, plaintiff AMA Multimedia, LLC, which owns copyrighted adult videos, failed to show that the defendant Polish citizen purposefully directed his activities at the United States. Judge Ronald Gould wrote a dissenting opinion arguing that because the website’s most important commercial market is the United States, specific personal jurisdiction exists (AMA Multimedia, LLC v. Wanat, August 17, 2020, Nelson, R.).

AMA Multimedia, LLC ("AMA") owns copyrighted adult videos. AMA filed suit against several defendants in the federal district court in Arizona alleging copyright infringement, trademark infringement, and unfair competition related to an adult website, ePorner.com ("ePorner"). The ePorner website is an internationally available website which hosts adult videos and allows users to search for, select, and watch the videos. Through subpoenas, AMA learned that Marcin Wanat, a citizen of Poland and partner in MW Media, S.C., owns and operates the ePorner website. The district court granted the Polish citizen’s motion to dismiss for lack of personal jurisdiction. AMA appealed.

Personal jurisdiction. The Ninth Circuit held that the Polish citizen lacks the requisite minimum contacts with the United States to establish specific personal jurisdiction. The United States was not the focal point of the website and of the harm suffered. AMA failed to show that the Polish citizen purposefully directed his activities at the United States. The Polish citizen committed intentional acts by establishing and maintaining ePorner, registering two domains, and entering into an agreement with an American domain name server, but he did not expressly aim his suit related conduct at the United States. The website uses geo-located advertisements, which tailor advertisements based on the perceived location of the viewer. This tailoring does not establish that the Polish citizen expressly aimed ePorner at the United States. The Ninth Circuit held that the district court correctly found that it lacked specific jurisdiction over the Polish citizen.

Jurisdictional discovery. The Ninth Circuit also held that the district court did not abuse its discretion by limiting the scope of AMA’s jurisdictional discovery on the basis of privacy concerns. The Ninth Circuit declined to consider new arguments that AMA raised for the first time on appeal concerning changes in European law. AMA argued that the Ninth Circuit should consider the Privacy Shield Decision or the General Data Protection Regulation (GDPR). The Privacy Shield Decision was enacted while the case was before the district court and the GDPR was enacted while the appeal was pending, but AMA failed to raise the issue in its initial briefing. Absent exceptional circumstances, the court generally will not consider arguments raised for the first time on appeal. While the court has discretion to consider new arguments raised for the first time on appeal, the court found that no exceptional circumstances warrant considering the new arguments raised for the first time on appeal in the present case.

Concurring opinions. Judge Ryan Nelson wrote a concurring opinion suggesting that perhaps the door remains slightly open for further proceedings on remand. Judge Nelson suggested that changes in European law—specifically, the Privacy Shield Decision and GDPR—may allow companies based in the United States to obtain personal data that may not have previously been available and that AMA could amend its complaint incorporating these changes in European law. Judge Sandra Ikuta wrote a separate concurring opinion arguing that because the district court lacks personal jurisdiction, the district court must remove the case from its docket.

Dissenting opinion. Judge Ronald Gould wrote a dissenting opinion arguing that because ePorner’s most important commercial market is the United States, specific personal jurisdiction exists. Although no facts in the current record show that the Polish citizen directly conducts activity within the United States, it is undisputed that ePorner’s most important commercial market is the United States. Nearly 20 percent of the website’s traffic, the United States audience is "substantial" and in fact makes up a larger proportion of ePorner’s user base than any other country, by a significant margin. Judge Gould argued that the majority’s holding conflicts with precedents and unduly restrains the ability to hold foreign tortfeasors accountable for conduct purposefully directed at the United States and causing harm in the United States.

This case is No. 18-15051.

Attorneys: Marc J. Randazza (Randazza Legal Group, PLLC) for AMA Multimedia, LLC. Jakub P. Medrala (The Medrala Law Firm Prof. LLC) for Marcin Wanat.

Companies: AMA Multimedia, LLC

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