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00412-20010307 Pavlovich App Reply
00412-20010307 Pavlovich App Reply
TABLE OF AUTHORITIES...............................................................................iv
I. INTRODUCTION......................................................................................2
A. PROCEDURAL POSTURE...........................................................2
II. FACTS........................................................................................................4
IV. ARGUMENT............................................................................................12
1. Purposeful Interjection...................................................32
V. Conclusion...............................................................................................36
FEDERAL CASES
Calder v. Jones (1984) 465 U.S. 783.........................14, 15, 21, 23, 24, 27, 28, 30
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89 F.Supp.2d 1154...................................................................................21
Reno v. American Civil Liberties Union, (1997) 521 U.S. 844, 851................36
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STATE CASES
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17 U.S.C 107..........................................................................................................17
STATE STATUTES
Cal.Civ.Code §410.10..........................................................................................12
Cal.Civ.Code §3426.1(a)......................................................................................19
TABLE OF EXHIBITS
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INTRODUCTION
1. PROCEDURAL POSTURE
p.224). After the filing of a Petition for Writ of Mandate, and an Informal
Opposition by Real Party in Interest, this Court denied the Petition for
1
All references to the separate Appendix of Exhibits filed with this
court on September 11, 2000 will be denoted “APP.” followed by the
appropriate page number or description.
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Concurrently with its grant of review, The Supreme Court directed this
Court “to vacate its order denying mandate and to issue an order directing
respondent Superior Court to show cause why the relief sought in the
petition should not be granted” (see Supreme Court order filed December
January 16, 2001, this Court filed an Order to Show Cause why the relief
Interest served its Return2 to the Petition by U.S. mail. Both parties
2
References to DVD CCA’s Return filed February 15, 2001, are
referred to at “RET” followed by the relevant citation.
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actual contacts with California and did not expressly aim his activities at,
II.
FACTS
3
References to Real Party in Interest’s Opposition to
PAVLOVICH’s Petition for Writ of Mandate dated September 18, 2000 are
referred to as “OPP” throughout this reply.
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4
In its Return, DVD CCA concedes that it has
mis-identified the subject web-site (Real Party
in Interest’s Return, hereinafter referred to as
“RET” at p.4, fn.2). For purposes of this
motion, PAVLOVICH voluntarily admitted that he
had See APP.p.67; Declaration of PAVLOVICH at
2:17-27.
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quash, Petitioner concurs that he, along with others5 had input on such a
56:21-24). Thus, liability on the part of PAVLOVICH stems solely from his
5
The project members who allegedly posted DeCSS are
not known to PAVLOVICH (APP.p.170-171;exhibit A at
pp.17-18), nor does he know where those individuals are
domiciled (APP.p.172;exhibit A at pp.19:19-21).
Petitioner also does not know who hosts the LiVid list
(APP.pp.173-174;exhibit A at 21-22) where information is
exchanged electronically between members.
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system as they see fit or to pick and choose which portions of a packaged
source code have been around for decades, including the popular Linux
and FreeBSD operating systems, the Apache server and others. Many
open source systems are protected by strict and rigorous licenses such as
VA Linux, RedHat, IBM, Corel, Sun Microsystems, Compaq and Dell. IBM
alone has committed 5 Billion dollars in research and development into the
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the system. Today, the open source Linux operating system is widely
6
While it might be flattering to think that as a 22 year old student in
Indiana Matthew Pavlovich was “a leader” in open source (RET at p.3),
this unattributed allegation is inaccurate. There is certainly no evidence in
the record to support such an allegation.
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the Internet’s success and universal acceptance on the fact that most of
Ironically, DVD CCA’s own web site employs both an open source
(see specifically,
http://uptime.netcraft.com/up/graph/?host=www.universalstudios.com;
7
See Lawrence Lessig, Code and Other Laws of Cyberspace (1999)
8
The open source Apache web server
application has been the number one web serving
application over the last 5 years (see
http://httpd.apache.org/ABOUT_APACHE.html ).
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group. The LiVid group was a loose association of volunteers who were
playback9. The LiVid project itself was run by volunteers, with no formal
organization, and PAVLOVICH did nothing on the project for long periods
LiVid was to improve video and DVD support for Linux and to combine
9
(See Petitioner’s Reply Papers attached as
Exhibit D to the separately bound Appendix of
Exhibits, hereinafter Exhibit D at APP.pp174-
175; Pavlovich Depo. at pp.22-23).
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player for Linux, because there was no DVD support for the popular
the subject of this lawsuit is not the same code as the LiVid DVD player
25).
10
As indicated in PAVLOVICH’S Petition, PAVLOVICH has no
connection with California. PAVLOVICH does not
reside in California and does not have any
regular clients or work in California (APP.pp67-
68; Declaration of PAVLOVICH at pp.2-3).
Furthermore, PAVLOVICH has never: solicited
business in California; designated a registered
agent for service of process in California;
maintained a place of business in California;
maintained a telephone listing in California;
maintained a bank account in California; or even
visited California for any business purpose
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less its situs in California, prior to the filing of this lawsuit and has never
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related to the trade secret cause of action that is the subject of this suit
Real Party in Interest does not contest the fact that PAVLOVICH
has had no contact with California or the fact that he did not know the
identity of the only plaintiff in this case (OPP, generally and at pp.11-12,
RET at p.10). DVD CCA argues that the lack of express aiming directed at
p.10) and that jurisdiction may be found solely based upon effects on the
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transferred this matter back to the Court of Appeal, the Supreme Court's
the Order to Show Cause as instructed by the Supreme Court, this Court's
order "is in the nature of a citation to a party to appear at a stated time and
place to show why the requested relief should not be granted (citations)"
(Hagan v. Superior Court (1960) 53 Cal.2d 498, 511 (dis.opn.of Schauer, J),
1240).
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conflict in the relevant facts, the question is one of law, the Appellate
Court exercises its independent judgment (Serafini at 77) and the lower
IV.
ARGUMENT
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contacts with the [forum state] such that the maintenance of the suit does
Shoe Co. v. Washington (1945) 326 U.S. 310, 320; Vons Companies, Inc. v.
Seabest Foods, Inc. (1996) 14 Cal.4th 434). "The defendant's conduct and
connection with the forum State must be such that the defendant 'should
Opposition and its Return concede the lack of general jurisdiction, opting
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As both the federal and state Supreme Courts have noted, each individual,
citing Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 471-472).
Royal Canadian Golf Ass'n (C.D.Cal.2000) 2000 U.S. Dist. LEXIS 1903212,
citing Bancroft & Masters v. Augusta National (9th Cir. 2000) 223 F.3d
12
This recent case denying jurisdiction based on a Bancroft
analysis is attached hereto as exhibit B.
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to forum residents (Id and also Ballard v. Savage, (9th Cir. 1995) 65 F.3d
1495, 1498).
“effects test” doctrine13. In the landmark case of Calder v. Jones, 465 U.S.
783 (1984), the Supreme Court held that jurisdiction may be found, within
the confines of due process, where certain intentional acts are “expressly
Courts have noted that due process provisions and Calder require
(Panavision Int’l, L.P. v. Toeppen, (9th Cir. 1998) 141 F.3d 1316, 1322,
13
There are numerous bases for determining specific jurisdiction. In
Internet publication cases, Courts frequently analyze the “effects test”
and the “sliding scale” approach (Cybersell Inc. v. Cybersell, Inc. (9th Cir.
1997) 130 F.3d 414, 419). DVD CCA has opted to argue exclusively under
the “effects” doctrine, conceding the level of interactivity of the LiVid web
site does not provide a basis for jurisdiction (RET at p.8, fn.5).
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Bancroft & Masters Inc. v. Augusta National Inc. (9th Cir.2000) __ f.3d
__, 2000 U.S. App. LEXIS 20917, 2000 C.D.O.S 6941, 2000 D.A.R. 9197 at
*10-14 (a courtesy copy of the decision has previously been provided to
opposing counsel and is attached hereto as exhibit B).
without directing the Court to any particular point or reason for denying
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site which allegedly had the DeCSS code posted on it, was apparently
secrets.
their claim. There is, however, evidence that the LiVid group’s goal was to
create better support for all types of video14 playback for Linux machines
14
In the context of computer programming, “video” includes any
graphical representations on a computer screen. Thus, video output
usually includes presentation of text and graphics on a video screen
connected to a computer and video playback includes the storage and
retrieval of such data.
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15
Contrary to the conclusion in DVD CCA’s Return, Petitioner did not
state that DeCSS facilitates piracy. Rather, when counsel for DVD CCA asked
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DVD’s were “key instruments of the motion picture industry in that they
informed his examiner that DVDs were used for “large back-ups and stuff”
attorney’s request that they only address DVDs used to deliver motion
corrected his examiner that motion pictures were probably not the primary
use of DVDs, just the most well known use (APP. at p.98; Deposition
28:20-25).
Petitioner only stated that movies and movie stars are known to exist in
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movie company.
“didn’t know the full details . ..” and “never knew for certain” (APP. at
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16
Petitioner did believe that DeCSS was reverse engineered (APP. at p.99-
100; Deposition at pp.32-33), however, he did not know that the reverse
engineering of DeCSS was illegal. The citation offered by Real Party to show such
“knowledge” predates the existence of DeCSS by a substantial amount of time
(see PET p.16, fn.9) such that it cannot possibly relate to DeCSS. The evidence
itself (see APP. at p.112; Declaration of Shapiro at Exhibit C) quotes previous
messages by others and relates to “media drivers” (programs that interact between
hardware and operating systems) not the CSS technology. Additionally,
Petitioner re-asserts his evidentiary objections outlined in opening papers PET at
p.16, fn.9.
In a trade secret action, the only way in which reverse engineering can be
“illegal” is if it is done in violation of a contract (See Cal.Civ.Code §3426.1(a)) –
DVD CCA provides no evidence to support such a conclusion.
Additionally, Petitioner contends the evidence itself is incompetent and
inadmissible as discussed in opening papers (PET at p.16, fn.9).
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jurisdiction despite the fact that the Defendant owned or operated the site
facts under the “effects test” The JDO Court differentiated Panavision
17
Naturally, the case would be different if the matter involved a
legal monopoly such as a patent or in some cases a copyright. There are
no such allegations in this instance.
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targeted an extortion scheme aimed directly at the plaintiff who was known
as in the case at bar, there was no such express aiming or targeting. The
the plaintiff with knowledge that said plaintiff would be affected within the
forum state.
DVD CCA argues that although DVD CCA did not exist until late
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Both the seminal “effects” case of Calder and the Panavision case
that applied the effects test to Internet contacts, discuss the existence of
nor any other case known to Petitioner, suggests that such “general
express aiming.
Court Orders. In Nissan Motor Co. Ltd. v. Nissan Computer Corp (C.D.
Cal.2000) 89 F.Supp.2d 1154 (cited by DVD CCA), the Court first found
18
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satisfied. It found the effects test satisfied based upon express aiming
order, the District Court noted that Poptop Software had posted an
of the infringing game (Id, at page 8). Additionally, counsel for Poptop
19
It is unclear from the brief discussion in this opinion whether or
not Poptop was aware that 3DO had its principal place of business in
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analysis turns less on the location of the harm or “effect”, and more on the
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non-forum defendant, together with the knowledge that the act is likely to
result in harm within that forum, that provides the “act” of purposeful
computer industry, motion picture industry or any other industry, can not
In Bancroft & Masters, Inc. v. Augusta National (9th Cir. 2000) 223
F.3d 1082, 1087, the Ninth Circuit (applying California law) candidly
tackled the effects test issues. That Court noted that after Calder and
forum resident” (Id at 1087). The Bancroft court reviewed a slew of cases
noting that in each instance, the finding of jurisdiction using the “effects
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the forum state such that the “forum effect of a foreign act ‘was not only
Court found:
Ass’n, (C.D. Cal.2000) 2000 U.S. Dist. LEXIS 19032 followed Bancroft
holding:
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Id at p.12
follows:
Meyers v. Bennett Law Offices (9th Cir. 2001) 2001 U.S. App.LEXIS 1539;
2001 DAR 1348 at p.7; emphasis added (attached as exhibit “B” for the
Court’s convenience).
expressly aim his activities at DVD CCA. By Real Party’s own admission,
less than 20% of the CSS licensees are located in California (RET at p.5),
Petitioner did not know of DVD CCA’s existence or location at the time the
p.12) and DVD CCA was not the licensor at the time the postings occurred
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acts were aimed at forum residents it becomes clear that due process will
would mean that any publisher of information must screen the content of
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harm the defendant knows will be suffered in the forum state (Core-Vent
Corp. v. Nobel Indus. (9th Cir. 1993) 11 F.3d 1482). Permitting the effects
20
In Goehring, the Petitioner knew the identity of the California
business and directed some correspondence and agreements to the
California entity. However, the Goehring Court still found that the
Petitioner had not purposefully directed their acts with an intention or
expectation that the documents would have an effect in California.
Similarly, assuming arguendo, PAVLOVICH did publish DeCSS
information, there is no evidence that his general knowledge about the
movie and computer industry translates into an intention or expectation
that publication of DeCSS would cause an effect in California.
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tangible thing that a person can target in the manner envisioned by Courts
conducting activities within the forum state and invoked the benefits and
reputedly exist in the forum state. Such purposeful acts only occur when
The concept behind the effects test is also ill-suited to apply to the
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noted the well established rule that “because a corporation “does not
individual does” (citing Core-Vent, supra, at 1486), the effects test does
location.
(Burger King v. Rudzewicz (1985) 471 U.S. 462, 475-476, 485). The case at
bar is precisely the fact pattern that Calder and its progeny seek to avoid
21
Naturally, this rule also applies in it pure form to the instant case,
since DVD CCA is a corporate plaintiff.
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plaintiff resulting in the suit and in Calder the defendant made various
phone inquiries and had other contacts with California which resulted in
the suit. By contrast, here, there are no true contacts with California that
not authored by the Petitioner and was not directed towards the plaintiff
in this action.
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is evident that DVD CCA was not the licensor of CSS at the time it was
posted. Thus any misappropriation that may have occurred was not
Here, the connection between this former 22 year old Indiana student and
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CCA urges that this Court apply the seven factor test enumerated in Core-
Vent v. Nobel, supra, 11 F.3d 1482. In weighing these factors, one reaches
unreasonable.
1. Purposeful Interjection
Even where there is sufficient “interjection” into the state to satisfy
material was in California, and knew the material would reach California
contacts. Here, since Petitioner did not target the plaintiff, did not know
the information would reach California, and did not interject himself into
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that could provide information in this case are available from Norway, to
Japan, to England, to New York and Connecticut. This factor also weighs
defendants. Here, Petitioner is in a foreign state within the nation. So, the
22
DVD CCA notes that Petitioner traveled to New York for a related
case (RET at p.16, fn.9). In that instance, PAVLOVICH had his air-fare
paid by a non-profit group and unceremoniously slept on a couch in an
apartment upon his arrival in New York.
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state has some interest in adjudicating the suit. However, where, as here,
this factor. DVD CCA opts to evaluate its efficiency in litigating all
matters in its home town – naturally it concludes the factor weighs in its
favor. However, Core-Vent states that in evaluating this factor, Courts are
to look primarily at where the witnesses and the evidence are located (Id at
1489). As indicated above, there are only one or two known California
the original posting of the code occurred in Norway. while the evidence
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York24 further suggests that this case could be tried in any number of
other available forums. Also, since California has adopted the Uniform
Trade Secrets Act, the plaintiff has the ability to prosecute the same claim
in any number of other jurisdictions. Thus, not only does this factor not
23
Universal City Studios, Inc. et al. v. Hughes, case no. 300CV721
RNC, (D.Ct).
24
Universal City Studios et al. v. Reimerdes et al., case no.
00Civ.0277 (LAK), (S.D.N.Y.).
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1490). In its Return, DVD CCA states that because it exists in California,
that is where it was harmed, that expense, burden and conflict could result,
and that California “has the greatest interest25 in the outcome of [this]
on the part of the plaintiff for its home forum does not affect the
balancing” (Id at 1490). Just as was the case in Core-Vent, Real Party
“has not met its burden of proving that it would be precluded from suing”
tried in Texas or any other alternative forum (Id at 1490). Therefore, the
V.
25
It is unclear why California would have the greatest interest in the
outcome of this case when DVD CCA’s own Return demonstrates that
over 80% of the CSS licensees are located outside of California (RET at
p.5).
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requested relief should be denied. This Court should resist Real Party in
state 26.
26
DVD CCA has argued, without proffering evidence, that because
California has a reputation for creating movies and high technology, it has
jurisdiction over Petitioner whose conduct allegedly touches on both.
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Respectfully submitted,
By:
ALLONN E. LEVY
Attorneys for Defendant
MATTHEW PAVLOVICH
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