Wednesday, August 8, 2001
Court of Appeal Upholds Jurisdiction Over Distant Website Operator in Trade Secrets Dispute
By KENNETH OFGANG, Staff Writer/Appellate Courts
A California court has jurisdiction over the operator of a distant website that publishes trade secrets or copyrighted material belonging to a California plaintiff, the Sixth District Court of Appeal ruled yesterday.
The court agreed with Santa Clara Superior Court Judge William J. Elfving, who denied Matthew Pavlovich’s motion to quash service of process in a suit brought by the DVD Copy Control Association, an industry trade group.
The association contends that Pavlovich, the head of a startup technology company, posted a computer program called DeCSS on his former website. The program could be used to defeat CSS—short for Content Scramble System—the encryption program used to protect copyrighted films on DVDs.
Pavlovich is one of some 500 defendants—located throughout the United States and overseas—in the suit brought by the association two years ago. He was a student at Purdue University at the time of the alleged posting and now lives in Texas.
Pavlovich has the backing of the Electronic Frontier Foundation, which generally opposes government interference with, and assertion of intellectual property rights against, website operators.
The foundation declared it a major victory last year when the state Supreme Court unanimously ordered the Sixth District to hear the merits of Pavlovich’s petition for writ of mandate, which the court had summarily denied the first time the issue came before it.
But Justice Eugene Premo, writing yesterday for the Court of Appeal, said California industry is entitled to use the state’s courts to protect its copyrights and trade secrets from predators, wherever they may be located.
“The Internet, as a mode of communication and a system of information delivery is new, but the rules governing the protection of property rights, and how that protection may be enforced under the new technology, need not be,” the jurist wrote.
He cited a 1984 U.S. Supreme Court ruling allowing actress Shirley Jones to sue a writer for, and the editor of, the Florida-based National Enquirer in California for defamation.
The justices in that case reasoned that because the article in question was widely circulated in California, and because California contacts were used as sources for its allegations, the defendants’ “intentional conduct in Florida [was] calculated to case injury to respondent in California” and Jones was entitled to sue here.
The decision, Premo said, indicates that a state’s longarm jurisdiction extends “to places beyond its boundaries to protect its laws from violations directed and perpetrated from afar.” The principle, he said, applies to “the new medium of the Internet” in the same way it applies to the print media.
Pavlovich, he went on to say, was technologically sophisticated enough to know that his computer program would be used by “consumers throughout the Internet word, including users and consumers in California.” He also knew that the motion picture industry, whose property he was illegally distributing, is based in California, the jurist said.
To defeat California jurisdiction under the circumstances, Premo explained, Pavlovich would have to show that being required to defend himself here was unduly burdensome or that another state has a stronger interest in adjudicating the controversy.
While litigating here may be inconvenient to Pavlovich, the burden cannot be considered so great as to violate due process, the justice said, particularly “in this era of fax machines and discount air travel.” Nor, Premo said, had Pavlovich shown that another forum was a more appropriate or more efficient place for the suit to proceed.
The case is Pavlovich v. Superior Court, DVD Copy Control Association, Inc. RPI, 01 S.O.S. 3955.
Copyright 2001, Metropolitan News Company