Court of Appeal No.

HO21961

IN THE SUPREME COURT OF THE

STATE OF CALIFORNIA

MATTHEW PAVLOVICH,' Supreme Court No. S100809

Petitioner
v,

SUPERIOR COURT OF THE STATE OF Trial Judge: Hon. William J. Elfving

CALIFORNIA FOR THE COUNTY OF Santa Clara County Superior Court
SANTA CLARA, Trial Court CaseNo. CV 786804

Respondent.
DVD COpy CONTROL ASSOCIA nON,
INC.,
Real Party in, Interest

REAL PARTY IN INTEREST

DVD COpy CONTROL ASSOCIATION'S BRIEF ON THE MERITS

CHRISTOPHER J. COX (Bar No. 151650) ROBERT G. SUGARMAN

WElL, GOTSHAL & MANGES LLP JEFFREYL. KESSLER
Silicon Valley Office GEOFFREYD. BERMAN
201 RedwoodShoresParkway WElL, GOTSHAL & MANGES LLP
RedwoodShores,CA 94065 767 Fifth Avenue
Telephone:(650) 802-3000 New York, NY 10153
Telephone: (212) 310-8000

Attorneysfor Real Party in

InterestDVD Copy Control
Association,Inc.

NYI :\I0t262~I.~27J 8.0003

 TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT .. 2

STATEMENT OF FACTS 9

14
PROCEDURAL
HISTORY
ARGUMENT 15
I. The Court Of Appeal Properly Ruled That Pavlovich Is SubjectTo The
JurisdictionOf The California Courts 15

2. Pavlovich's Actions Meet The "Expressly Aiming" Prong 17

A.
Pavlovich
1.
Pavlovich's
Purposely
Actions
Availed
Meet
Himself
The
Intent
Of
The
Prong
Privileges
Of
The
Of
Effects
This
State
Test
19

3. Pavlovich's
Of The Effects Conduct Caused Harnl That He Knew Or Reasonably
Test 20

Should Have Known Was Likely To Cause Harnl In California

B The Court Of Appeal's Decision Is ConsistentWith

The DictatesOf Calder

n The Claims Arise From Pavlovich's Forum-RelatedActivity 31

m. JurisdictionHere ComportsWith Notions Of Fair Play And SubstantialJustice 32

CONCLUSION 36
 TABLE OFAUTHORInES

FEDERAL CASES

300 Co. v. PoP/oPSoftware,Inc., 49 U.S.P.Q.2d 1469(N.D. CaI. 1998) 21,22

Ballard v. Savage,65 F.3d 1495(9th Cir. 1995) .31

Bancroft & Masters,Inc. v. AugustaNational, Inc.,

223 F.3d 1082 (9th Cir. 2000) , 7,24,25,26

CableNewsNetwork v. GoSMS.Com,56 U.S.P.Q.2d 1959(S.D.N.Y. 2000) 22

Calder v. Jones,465 U.S. 783 (1984) 2, 16, 17?, 20, 25

caOowayGolf Corp. v. Royal CanadianGolf Association,

125 F. Supp. 2d 1194 (C.D.Ca!. 2000) ,

23,26

Core-VentCorp. v. Nobel Industrial, 1 F.3d 1482(9th Cir. 1993) .7,21,23,33

Cybersell/nc. \I. Cybersell,/nc.,'130 F.3d 415 (9th Cir. 1997) 31

Gordy, Gordyv. Dai/yNews, L.P. (9th Cir. 1996)95 F.3d 819

Gutie"ez v. Givens, 1 F. Supp.2d 1077(S.D.Ca. 1998) , 24

Hansonv. Denck/at357 U.S. 235 (1958)

McGeev. International Life InsuranceCo., 355 U.S. 220 (1957)

.18,21,32

Panavisionlnter'l, L.P. v. Toeppen,141F.3d 1316(9thCir. 1998) , 8, 7

PanavisionL.P. v. Toeppen,938 F. Supp.616 (CD. Call996),

oD'd, 141F.3d 1316, 1321(9th Cir. 1998) 16,34

13
Universal
Studios,
Inc.
v.
Corley,
273
F
.3d
429
(2nd.
Cir.
200
1)
UniversalStudios,Inc. v. Reimerdes, ,13
11
F.
Supp.
2d
294
(SD.N.
Y.
2000)
NY 1:\ I 0I2627\06\N7CZ06! .JXx:\42711.0003 11
 TABLE OF AUTHORITIES

STATE CASES
Burger
King
v.
Rudzewicz,
471
U.S.
462,
473-74
(1985)
CassierMining Corp.v. SuperiorCourt,(1998)66 Ca!.App.4th 550 24

City and County of San Francisco v. Sainez,

(Ct. App. 1st Dist. 2000) 77 Cal.App. 4th 1302, 1313. 18

Edmundsv. Superior Court, (1994) 24 Cat. App. 4th 221

Fisher Governor Co. v. Superior Courl, 53 Cal. 2d 222 33,3S

In re Marriage of Flaherty, (1992) 31 Cal. 3d 637 ... 18

JewishDefenseOrganization,Inc. v. Superior Court,

72 Cat. App. 4th 1045(1999) 31

Pavlovichv. Superior Court, 109cat. Rptr. 2d 909 (2001) .. 2

Quattronev. Superior Court, 44 Ca!. App. 3d296 (1975) 17

Rodriguez v. Solis, (5th Dist. 1992) Cat. App. 4th 495 18

VonsCompanies,Inc. v. SeabestFoods,Inc.,
(1996) 14 Ca!. 4th 434 cert. denied522 U.S. 808 16, 24

NYI:\ I ~27I4)6\N7C1JI6!;0CK:\427I'.OOO3 111

 By andthrough its undersignedcounsel,Real Party in Interest

OVD Copy Control Association,Inc. ("OVD CCA") herebyrespondsto

PetitionerMatthew Pavlovich's (the "Petitioner" or "Pavlovich") Brief on

the Merits ("Pet.Br .").

PRELIMINARY STATEMENT

The decisionof the Court of Appeal sustainingthe

jurisdiction of the California courts over PetitionerMatthew Pavlovich

follows and applieswell settledprinciples laid down by the SupremeCourt

of the United Statesandthe courtsof this state. In particular,the Court of

Appeal properly appliedthe "effects test" articulatedby the United States

SupremeCourt seventeenyearsago in Calder v. Jones As the Court of

Appeal correctly noted

[T]he fact that Pavlovich usedthe new mediumof the Internet

to inflict harm on a California plaintiff, insteadof the print
mediathat was usedin Calder, is irrelevant. It shouldnot
matterwhetherthe delivery systemusedto inflict the injury is
the traditional delivery systemof air, land, or sea
transportation,or the cutting-edgetechnologicalsystemof
cyberspace,satellites,cable,and electro-magneticwaves.
California's long- arm statutelooks at the effects,not at the
systemthat deliveredand producedthoseeffects.

Pavlovich v. Superior Court (hereinafter, the ""Appellate Opinion"), 109

Cal.Rptr.2d909,914 (2001).

465 U.S. 783 (1984).

2
 In his attemptto convincethis Court to departfrom theselong

establishedprinciples, Petitioner:

1 Misreadsand mischaracterizesthe decisionin Calder;

, Selectivelyquotesand fundamentallymisinterpretsthe

decisionsof this Court, lower California courtsand FederalCourts;and

3. Asserts,for the first time andwithout any record

support,that "Matt Pavlovich himself did not post the codeon the LiVid

site or anywhereelse," Pet.Br.,p. 10, and suggests,also for the first time

andwithout record suppo~ that his involvementin the misappropriationof

DVD/CCA ' s trade secretswas minimal

In fac~ Pavlovi,:h's role in the misappropriationof

DVD/CCA's trade secretsby posting ofDeCSS on the Interner was neither

minimal, innocentnor inadvertent. Pavlovich is a leaderin the "open

source"movement,which generallyseeksto makematerialavailableover

the Internet for free. In particular,Pavlovich foundedand operateda group

called the "LiVid Video Project," a key purposeof which, in Pavlovich's

2 This actionwascommenced
in orderto stopthetheftofDVD CCA's
tradesecretsthat are utilized in an encryption-basedcopy protectionsystem
known asthe ContentScrambleSystem("CSS"). CSSis employedto
encryptand therebyprotectthe copyrightedmotion picturescontainedon
Digital VersableDiscs ("DVDs"). Pavlovich and the other defendantsin
the underlying action developedand/or disseminatedcomputerprogramson
the Internet,including a programcalled DeCSS,that misappropriateDVD
CCA's tradesecretsand are designedto defeatthe CSSencryption
technology. Suchactionsfacilitate the wholesaleinfringementof
cfJpyrightedmotion picturesby individuals worldwide.

3
own words "was to aid in the developmentof an unlicensedsystemfor

DVD playbackand copying.,,3

As statedby the Court of Appeal,

Pavlovich cannotclaim innocentintent. As a computer

engineeringstudent,a technicianin the computerand
telecommunicationsindustry, a founder and presidentof a
technologystart-upcompany,and a leaderin the "open
source"movement,Pavlovichknew, or shouldhave known,
that by posting the misappropriatedinformation on the
Internet,he was making the information availableto a wide
rangeof Internetusersand consumersthroughoutthe Internet
world, including usersandconsumersin California.

Appellate Opinion at 916.

In disseminatingDeCSSon the Internet, Pavlovich engaged

in purposeful,unlawful conductdirectedat three substantialindustriesin

the Stateof California - the motion picture industry, the computerindustry

andthe consumerelectronicsindustry. He did so knowing that his actions

would adverselyaffect thesebusinessenterprisesand that his actionshad

the effect of circumventingtrade secretprotectionsestablishedby and for

the benefit of thosebusinessenterprises.Without denyingany of these

facts,Pavlovichseeksto escapethe jurisdiction of this court by arguingthat

3 AppellateOpinionat 912. In a message

postedon October1, 1999,
Pavlovichstated: "I havebeenlimiting my work in other projectsand
really changinggearsfor LiVid." And, on November 10, 1999Pavlovich
posteda messageentitled: "[LiVid-dev] More legal trouble" in which he
stated: "It seemsto me that at leasttwo things needto happenASAP: # I
Move the mailing list and CVS site to a friendly country, where lawyers
like thesehave limited (and perhapsno) ability to harassmailing list hosts,

4
he did not know the preciseidentity of the plaintiff, and that his acts

targeted generalindustriesratherthan a specificpersonor entity. This

argumentis untenableunderthe California long arm statuteand relatedcase

iW.

Pavlovich identifies threeissuesfor review by this Court: (i)

whetherjurisdiction in California is properunderthe Calder effectstest

"a defendantknew or shouldhaveknown that his actswould have an

effect on industriesgenerallyreputedto exist in California" (Pet.Br.,p. 1);

(ii) whetherthe 'expressaiming' requirementof the Calder effectstest may

be satisfiedby "general,untargetedacts" (Id.); and (iii) whetherjurisdiction

in California is proper under the Calder effects test where a defendant "is
I

responsiblefor a passive,non-commercialwebsitethat enablesan unknown

third party to post infonnation subsequentlyclaimedto have causedhanD

in California, without 'somethingmore.'" (Id)

Pavlovich suggeststhat the answerto eachof thesequestions

is no andthat the Court of Appeal's decisionshouldthereforebe

overturned. In fact, however,the Court of Appeal's decisionshouldbe

afflrIned regardlessof the answersto the questionsposedby Pavlovich,

With regardto the first question,Pavlovich aimedhis conduct

at particular,known, California parties,not just at "industries generally

CVS contributorsandthe like. ." Attached to the Shapiro Decl. as Exhibit

c.

~
reputedto exist in California." He actedwith the knowledgethat his

conductwould harm the sole entity licensingCSS(DVD CCA, a California

domiciliary), its California licensees - computerhardwareand software

companies-- and the California-basedmotion picture companiesthat

Thus,whetherjurisdiction would be proper over a defendantwho knew or

shouldhaveknown Qnlythat his conductwould havean effect on

"industries generallyreputedto exist in California" is of no relevancehere.

Moreover,evenif that questionwere relevant,the answer

would be yes. The Calder effectstest is satisfied,andjurisdiction is

therefore appropriate, so long :asthe defendant engaged in intentional

conductaimedill ~ furnm~, knowingthatsuchconductis likely to

causehanDto forum residents. Thoseresidentsmay be specific individuals

or entities,or generalindustries.To rule otherwisewould permit out of

statedefendantsto target broad-basedCalifornia industries- like the citrus

industry,the softwareindustry, or the movie industry without fear of

being haled into court heresimply becausethey did not have a specific

citrus, softwareor movie companyin mind when they acted.

With regardto the secondquestionposedby Pavlovich, it is

clear from the record,and from the fmdings of the SuperiorCourt and

Court of Appeal, that, far from "general,untargetedacts," Petitioner's

conductwas directedat entities in California - the motion picture

6
companies,the computercompaniesand Real Party in InterestDVD CCA.

Thus,whethergeneraluntargetedactssatisfy the Calder effectstest, hasno

bearingon an evaluationof Pavlovich's conduct.

Even if that questionwere relevantto the circumstanceshere,

it is clear that a defendant'sactsneednot be targetedat specific California

individuals or organizationsin order to trigger Californiajurisdiction.

'Expressaiming' underthe Calder effectstest meansexpressaiming m ~

well-establishedthat if California is the placewherethe brunt of the injury

is felt, then California jurisdiction is proper..s

As to the third question identified by Pavlovich, again, the

I

recordand the findings of the courtsbelow are clear that Petitionerdid

engagein 'somethingmore' than participation in a passive,non-

commercialInternet site. In its opinion, the Court of Appeal notesthat

Pavlovich: 1) "developedand/orpostedcomputerprogramson the Internet

. that misappropriateDVD CCA's trade secrets;"2) knew that a license

was requiredto use suchtradesecrets;3) failed to apply for or obtain a

license;and 4) "sought to and actually disseminated[DVD CCA's] trade

secrets"anyway. Appellate Opinion at 912. Moreover, 'expressaiming' at

4 Appellate Opinion at 918; Bancroft & Masters,Inc. v. AugustaNational,

Inc., 223 F.3d 1082 (9th Cir. 2000).
S Core. Vent Corp. v. Nobel Indus., F.3d 1482,1486(9th Cir. 1993).

T
the forum statehas beenheld to constitutethe 'somethingmore' required

by Calder. That is exactly what Pavlovich did here. Thus,whether

Pavlovichcould be subjectto California jurisdiction without this

'somethingmore' is of no relevancehere and cannotwarrant a reversalof

the Court of Appeal's decision.

Finally, it is irrelevant,underthe effectstest,whethera web

site is passiveand non-commercialas opposedto interactiveand

commercial. Thosefactorsarerelevantonly to inquiries -- outsideof the

effectstest framework --into whetherthe defendant'scommercialcontacts

with a forum subjectthat defendantto jurisdiction there.6

As the Superior Court and Court of Appeal correctly

1

recognized,defendantswho misappropriatevaluabletradesecretsand

inflict injury on major interestsin California cannotbe immunizedsimply

by conductingtheir illegal activities from afar over the Internetand can be

requiredto answerfor their actionsin this State. In this regard,it should

not matterwhetherthe defendant'sactionstarget a person,an entity or a

groupof entities. The ideathat an individual, out-of-statecyber-terrorist,

for example,could set loosea computervirus with the intent of paralyzing

energydelivery, or businesscommunication,or water flow in the Stateof

California, yet somehowavoid the jurisdiction of the California courts

6 Panavision Inter'l, L.P. v. Toeppen, 14 F.3d 1316, 1321(9th Cir. 1998).

8
becausethat individual was not targetinga particular individual or entity

makesno sense.The actionsof that defendantare aimed at the forum state

and are,thus, under Calder, sufficient to subjecthim to thejurisdiction of

the courtsof that forum state. Accordingly, as further detailedbelow, the

Court of Appeal's decisionshouldbe affinned.

STATEMENT OF FACTS

Real Party in InterestDVD CCA is the sole authorized

licensorof the encryptiontechnologyknown asCSS.7 DVD CCA licensees

CSSandthe associatedproprietarytechnologyfor usein an array of

computeroperatingsystems,including Microsoft's Windows,Macintosh's

MacO/Sandthe Linux operatingsystern.8

Pavlovich himself hasadmittedin sworn testimonythat he is

the presidentof a technologystart-upcompany(Pavlovich Aug. Depo.,p

8), a fonner computerengineeringstudent,and a technicianin the computer

7 Contraryto Petitioner's assertion,DVD CCA is not maintainingthis

action asan assignee.DVD CCA cameinto existenceprior to the time
DeCSSwaspostedon the Internet and,after an interim period during which
it administeredlicenseson behalf of its predecessorin interest,took over all
licensingresponsibilitiesin Decemberof 1999. Petitionertsactionsprior to
and sinceDecember1999havehannedDVD CCA's businessinterests.
Further,whetheror not DVD CCA were pursuingthis action as an assignee
hasno bearingon the jurisdictional issuesbeforethis Court.
8Thereis no record supportfor Petitioner'sclaims that "the entitieswho
licenseCSShadnot permitted CSS-equippedDVD playersto be built for
the Linux operatingsystemor for other open-sourceoperatingsystems."
C>p Br. p.3. In fact, CSStechnologyhasbeenlicensedto thoseseekingto
developa player for the Linux environment. Hoy Decl ~~ 5-20.

9
andtelecommunicationsindustry.9 At the time he postedDeCSSon the

Internet,he was a leaderin the "open source"movement,which is

dedicatedto making material availableover the Internet. At that time,

Pavlovichhad foundedand was operatinga groupcalled the LiVid video

Although Pavlovich's Brief on the Merits statesthat he did

not have"sole control" over the website,he testified under oath that he was

the "founder" and"project leader" of the LiVid video project andthat the
website in question was the host site for that project. I I Pavlovich also

testified that the membersof$e LiVid video project communicated

9 SeeJuly 7, 2000 Depositionof Matthew Pavlovich ("Pavlovich July

Depo.") p. 18,cited pagesattachedto the ShapiroDecl. asExhibit B.
10 Appellate Opinion at 912; Seealso Depositionof Matthrew Pavlovich,
August 4, 2000 ("Pavlovich Aug. Depo") pp. 15-16,40, cited portions
attachedasExhibit A to the Declarationof JonathanShapiro("Shapiro
Decl."), filed with DVD CCA's original appellatepapers;seealso
Declarationof Matthew Pavlovich in Supportof his Motion to Quash
("Pavlovich Decl."),' 9, containedin Exhibit B to the Petitioner's original
appellatepapers.
11Pavlovich August Depo. pp. 15-17,40.

10
of Appeal's decision,Petitionerand the other defendantsdevelopedand/or

postedon the Internet a computerprogram called DeCSS,13

which

misappropriatesDVD CCA' s proprietary tradesecretsand is designedto

defeatthe CSSencryptiontechnology.14

At the time DeCSSwas postedon the LiVid project website,

Pavlovich knew that "there was an organizationwhich you had to file for or

apply for a license"to usecertainDVD technology(PavlovichAug. Depo.,

pp. 24-25, 86-87) (pavlovich July Depo., pp. 86-89). Despitethis

knowledge,the LiVid project, which Pavlovich founded,never soughtor

13 For the first time, in his Brief on the Merits, Pavlovichstatesthat "Matt
Pavlovichhimself did not post the code on the LiVid site or anywhere
else." This claim hasno factual supportin the record. In fact, the record
showsthat Pavlovich refusedto answerdirect questionsabouthis role in
postingDeCSSon the Internetaspart of his agreementto be deposedon
jurisdictional issues. ~ Pavlovich Aug. Depo.pp. 36-37, 94-95,~ ~
pp.9, 18. Further, Pavlovich's new and cleverly wordeddenial allows
Pavlovichto appearto deny involvementin the posting ofDeCSS even if
he (i) instructed,aidedor encouragedsomeoneelseto post DeCSSon the
website;and/or(ii) simply posteda "button" or text line which, when
clicked, depositedthe codeon users' hard drives. Even Pavlovichhimself,
later in his Brief, characterizeshis involvementin this caseas "input to a
websiterun by his not-for-profit volunteer group." Pet.Br.,p. 36. Whether
"Pavlovich himself' actuallypostedDeCSSon the Internetor whetherhe
allowed or encouragedsomeoneelseto do so on his websiteis irrelevant.
Either way, he knowingly participatedin the disseminationof wrongfully
acquiredtradesecrets.
14Appellate Opinion at 911-912. Contrary to Petitioner'sclaim that he
innocentlyrepublishedDVD CCA's trade secretson the Internet,the
SuperiorCourt ruled that "circumstantial evidence,availablemostly due to
the various defendants'inclination to boastabouttheir disrespectfor the
law, is quite compelling on ... Defendants'knowledgeof impropriety."
~ Order GrantingPreliminaryInjunction, p. 4.
11
obtaineda licenseto useDVD technology, It neverthelessutilized DVD

CCA's trade secrets,including thosecontainedin DeCSS. (pavlovich Aug.

Depo.,pp. 51, 57-58).

When Pavlovich misappropriatedDVDCCA's trade secrets,

he alsoknew that suchactionswould adverselyimpactthreesignificant

industrieslocatedin California - the motion picture industry,the consumer

electronicsindustry and the computerindustry. Appellate Opinion at 912.

Pavlovichknew the motion picture industry was centeredin

California (PavlovichAug. Depo.,pp. 29-30); that DVDs were key

instrumentsof the motion picture industry in that they serveto deliver

motion picture contentto their;purchasers(Pavlovich Aug. Depo.,pp. 28);

that DeCSSfacilitatesthe pirating of DVDs (Pavlovich Aug. Depo.,pp. 59-

60); andthat pirating DVDs is wrongful conduct{PavlovichAug. Depo,

p. 71). His conducthas in fact injured the motion picture industry by

making availablesoftwarethat allows the illegal copying of its copyrighted

motion pictures.

Further,at the time he misappropriatedDVD CCA's trade

secrets,Pavlovich knew that the computertechnologyindustry hasa

substantialpresencein California (Pavlovich Aug. Depo.,pp. 41-44).

Indeed,of the more than 400 CSSlicensees companiesthat makethe

computerhardwareand softwarewhich allow consumersto view digital

imageson DVDs - 73 are locatedin California, 42 are locatedin Santa

12
Clara County and an additional 17 are in other Bay Area locations. See

Complaint, 1 53.

Thus,the Court of Appeal properly found that Petitioner

misappropriatedDVD CCA 's trade secretsknowing that suchactions

"were injuriously affecting the motion picture and computerindustriesin

Califomia"ls and that suchconductthreatensthe economicwelfare of the

more than 400 CSS licensees - companiesthat makethe hardwareand

softwareenablingconsumersto view digital imageson DVDs, 73 of which

are locatedin California.16

Finally, Pavlovich's familiarity with CSS,DeCSSand the

consequences
of his actionsis,demonstratedby the fact that he was

designatedas a potential expertwitnessby the defendan~and was deposed,

in UniversalStudios,Inc. v. Reimerdes,11 F .Supp.2d294 (SD.N. Y

2000),a casedecidedin the United StatesDistrict Court, SouthernDistrict

of New York which involved the sameconductasthat at issuehere. That

decision,which enjoinedthe defendantstherefrom posting DeCSSto the

Internet,was affirmed just threemonthsago by the United StatesCourt of

Appealsfor the SecondCircuit. UniversalStudios,Inc. v. Corley, 273 F 3d

429 (2nd. Cir. 2001).

IS Id. at 915-16.

16See Complaint, , 53, attachedasExhibit D to the ShapiroDecl.;

AppellateOpinion at 912, 915-916.

13
 PROCEDURAL mSTORY

On January21, 2000, JudgeJ. William Elfving of the

RespondentSuperiorCourt grantedin part DVD CCA's requestfor

preliminary injunctive relief to preventdisseminationof its proprietary

information. The Preliminary Injunction preventsthe defendants,including

Pavlovich,from

Postingor otherwisedisclosingor distributing, on their

websitesor elsewhere,the DeCSSprogram. .. or any other
information derived from this proprietary information.

See Order Granting Preliminary Injunction, p. 2.17

Six monthslater, on June6, 2000, Pavlovich movedthe trial

court for an order quashingserviceof process. After full briefmg and oral

argument,on August 30, 2000, JudgeElfving deniedPavlovich's motion

On September11, 2000,Pavlovich petitionedthe Court of Appeal for the

Sixth AppellateDistrict for a Writ of Mandatecompelling the trial court to

quashserviceof process. The court deniedthat petition on October 11

2000.

Pavlovichthen petitionedthis Court to review that decision,

Upon instructionsby this Court, the Court of Appeal, on January16,2001,

orderedthat the SuperiorCourt show causewhy the relief requestedby

17That Orderremainsin effect. On review, the Court of Appeal for the

Sixth AppellateDistrict ruled that the orderviolates the First Amendment.
I>VD CCA haspetitionedthis Court to review that decision. The
injunction remainsin effect pendingdisposition.

14
Petitionershouldnot be grantedand directedthat Petitionerand Real Party

In InterestDVD CCA file additional briefs on the matter. On August 7,

2001,the Court of Appeal filed an unanimousopinion, againruling that

Pavlovich is subjectto California courtjurisdiction in this matter.

Pavlovich againpetitionedthis Court for review of that

decision. On December12,2001, this court grantedreview.

ARGUMENT

I. The Court Of Anneal Pronerly Ruled That Pavlovich Is Subject

To The Jurisdiction Of The California Courts

The Court of Appeal's ruling correctly appliedtraditional,

well-settledrules governingpersonaljurisdiction to the modemworld of

the Internet. As the court notedin its opinion:

The Internet,asa mode of communicationand a systemof

infonnation delivery is new, but the rules governing
protectionof property rights [on the Internet] neednot be.
Thereis, for instance,sufficient guidanceprovided by the
United StatesSupremeCourt in Calder v. Jones.

Appellate Opinion at 912-13(citation omitted).

Contraryto Petitioner's doomsdayrhetoric, the Court of

Appeal's ruling doesnot "completely eviscerate"the SupremeCourt's

ruling in Calder v. Jones(Pet.Br.,p.30), nor doesit basejurisdiction on

"random" or "fortuitous" acts(Id.). Rather,the exerciseof jurisdiction over

Petitionerfollows the establishedprecedentof the U.S. SupremeCourt, this

Court andthe Court of Appealsfor the Ninth Circuit. As the U.S. Supreme

15
Court statedin Calder v. Jones,where a defendant"knew the brunt of the

injury would be felt" in the forum state,he or she"must reasonably

anticipatebeing haled into court thereto answerfor" his or her conduct.

465 U.S. 783, 788-89(1984).

Petitionerprovidesno legitimatereasonwhy this Court

shoulddisturb the Court of Appeal's ruling. It is well-settledthat

California courtsmay exercisespecificjurisdiction over nonresident

defendantswhen "the statehas 'a manifestinterestin providing its

residentswith a convenientforum for redressinginjuries inflicted by out-

of-stateactors.'" VansCompanies,Inc. v. SeabestFoods,Inc., (1996)

14 Cal.4th 434, 447 cert. denied 522 U.S. 808, citing Burger King v.
I

Rudzewicz,471 U.S. 462, 473-74 (1985).18"The defendantneednot ever

havebeenphysically presentin the forum statefor specificjurisdiction to

aff'd, 141F.3d 1316, 1321(9th Cir. 1998).

Courtsapply a three-parttest to determinewhetherspecific

jurisdiction exists in a particular instance. Ejrn, the defendant must have

purposefullyavailedhimself or herself of the forum. Second,the

controversymust arise from the defendant'scontactswith the forum.

ThirQ,the exerciseof jurisdiction must comportwith notionsof ' 'fair play

18The limits of the California long-ann statuteare co-extensivewith the

limits of dueprocess. Cal. CodeCiv. Proc. § 410.10.

16
and substantialjustice." See,e.g.,PanavisionInter 'I, L.P. v. Toeppen,141

F.3d 1316,1321(9th Cir. 1998). In its decision,the Court of Appeal

followed this framework. Appellate Opinion at 913-15 As detailedfurther

below, Pavlovich's conductclearly satisfiesall three prongsof this test and,

thus,his requestthat this Court reversethe Court of Appeal's decision

shouldbe rejected.

A. Pavlovich Purposely Availed Himself Of The Privileges Of

This State

California Courtshavelong held that the "purposeful

availment" requirementis satisfiedwherea defendant'sintentionalconduct

causesharmful effectswithin the state. See,e.g.,Panavision, 4 F.3d at

1321,citing Calder, 46Su.s. 783; Quattronev. Superior Court, 44

Cal.App.3d296 (1975); Hansonv. Denckla, 357 U.S. 235 (1958);McGee

v. International Life Ins. Co., 355 U.S. 220 (1957).

Under the "effects test," a defendant'sactionsconstitute

'purposefulavailment' if thoseactionsare (1) intentional actions

(2) expresslyaimedat the forum state(3) causingharm which is suffered-

andwhich the defendantknows or reasonablyshouldhaveknown is likely

to be suffered - in the forum state. Panavision, 141F.3d at 1321

When evaluatinga petition for writ of mandate(which is

what Pavlovich seeks)~an appellatecourt is confined "to an inquiry as to

whetherthe findings andjudgment of the trial court are supportedby

17
substantial,credibleand competentevidence." Rodriguezv. Solis, (5th

Dist. 1992) Cal.App.4th495. And, under California law, whereneither

party requestsfactual findings from the lower court, "an appellatecourt

must presumethat the factswould supportthe trial court's judgement." In

nothing to rebutthis presumption.

Further,on motions to dismissfor lack of personal

jurisdiction, the allegationsof the complaint are taken astrue, with disputes

being resolvedin favor of the plaintiff. See,e.g.,NissanMotor Co., Ltd. v.

Nissan ComputerCorp., 89 F. Supp.2d 1154, 1158(CD. Cat. 2000), aff'd,

246 F.3d 675 (9th Cir. Dec. 2(>,2000). In its Complaint, DVD CCA

allegedthat Pavlovich and the other defendantsintentionally developedand

distributedcomputerprogramsutilizing DVD CCA's trade secretswithout

authorization,and with the knowledgethat suchactionswould adversely

affect threeof California's most prominentand internationally-known

industries- the computerindustry, the consumerelectronicsindustry and

the motion picture industry (seeComplaint,~ 45-74). Thus the Complaint

19By citingbothCalderandPanavision
in supportof his ruling,Judge
Elfving clearly ruled that Pavlovich's conductmeetsthe effectstest
standardscontainedin thosecases.Factualfindings that can be inferred
from a lower court opinion are entitled to the samedeferenceon appellate
review as factual findings that are expresslystated. SeeCity and Countyof
SanFrancisco v. Sainez,(Ct. App. 1stDist. 2000) 77 Cal.App. 4th 1302,
1313.

18
allegesthat Pavlovich expresslyaimedhis intentional conductat this State

with the knowledgethat suchconductwould causesubstantialhanDhere.

This aloneis enoughto establishjurisdiction over Pavlovich in California.

In additio~ as detailedbelow, substantialand credible

evidenceon the record supportsjurisdiction over Pavlovich in California.

1. Pavlovich's Actions Meet The Intent Prong Of The

Effects Test
It is beyonddebatethat Pavlovich's conductwas intentional.

If a defendanthad accidentallypostedDeCSSto the Internet, or

accidentallycreateda programwhich, without a licenseto do so, decrypted

the copyrightedcontentofDVDs, suchconduct,without more, might not

be consideredintentionalconduct. By contrast,however,Pavlovich, has

admittedthat (i) he was the founderandproject leaderof the LiVid project,

which was createdto help createan unlicensedDVD player; (ii) the

livid.on.openprojects.net
websiteon which DeCSSwas postedwas the host

site for his LiVid video project; Pet.Br.,p. 36; PavlovichAug. Depo.,pp.

15-17,40; Appellate Opinion, p. 12; (iii) Petitionerknew DeCSSwas

developedby reverseengineering(Appellate Opinion at 912; Pavlovich

Aug. Depo.,pp. 32-33) and that suchreverseengineeringis illegal

(Appellate Opinion at 912; LiVid posting,October 1, 1999,attachedas

Exhibit C to ShapiroDecl.); and (iv) Petitionersoughtto distribute DVD

CCA's tradesecretswhile knowing that suchaction was illegal (Appellate

19
Opinion at 912; LiVid postings,November 10, 1999,attachedas Exhibit C

to ShapiroDecl.). Moreover,Pavlovich was limiting his role on other

projectsand "really changinggearsfor LiVid.~~Id. Even Pavlovich

himself characterizeshis involvementin this caseas "input to a websiterun

by his not-for-profit volunteergroup." Pet.Br.,p. 36. Nowheredoes

Pavlovich claim - nor could he - that his role in the unlawful dissemination

ofDVD CCA's trade secretswas accidental.

In arguingthat the Court of Appeal misconstruedCalder's intent

requirement,Pavlovich confusingly scramblesCalder's "intent" requirementwith

its "expressaiming" requirementand contendsthat the Court of Appeal "lowered

the intent elementof the expressaiming requirement." Pet.Br.,p.19. Under the

intent requirementof the effectstest, it is a defendant'sactionswhich must be

intentional,asPavlovich's were. It was the defendants'"intentional, and

allegedly tortious, actions" that the Calder court cited in ruling that California

jurisdiction was proper in that case. Calder at 789 (emphasisadded). As setforth

above,Pavlovich's actionsclearly satisfy this intent standard,and he doesnot

claim otherwise. The Court of Appeal properly appliedthis standardand did not,

as Pavlovich confusingly asserts,createa negligencestandardor "lower the intent

standardof the expressaiming requirement." Pet.Br.,p.19

2. Pavlovich's Actions Meet The "Expressly Aiming"

Prong Of The Effects Test

The "expressaiming" requirementof the effectstest requires

that the defendantaimedhis conduct~ ~ fQn!m~. As statedby the

20
Calder court itself, "[i]n judging minimum contacts,a court properly

focuseson 'the relationshipamongthe defendant,the forum, andthe

litigation", (Id. at 788), not the defendantand the plaintiff. Indeed,

knowledgethat "the brunt of the hanDwould be sufferedin California" has

beendeemedthe "[ m]ost significant" factor favoringjurisdiction underthe

effectstest. Core-VentCorp. v. Nobel Indus., 11 F.3d 1482, 1486(9th Cir.

1993).

In Panavision,for example,the court found that the express

aiming requirementwas satisfiedwhere, inter alia, the defendantregistered

the plaintiff's motion picture cameratrademarksas "domain names"on the

Internetknowing that plainti~ did substantialbusinesswith the motion

picture industry and that "the heartof the theatricalmotion picture and

television industry is located[in California]." Id; seea/soNissan,89

F.Supp.2d1154(C.D. Ca. 2000)(holdingthat a North Carolinadefendant

was subjectto California jurisdiction for trademarkinfringementover the

Internet).

In 3DO Co. v. Pop/oPSoftware,Inc., 49 U.S.P.Q.2d 1469

(N.D. Cal. 1998), a California plaintiff sued for misappropriation of trade

secretsassociatedwith computer games. In upholding jurisdiction over the

nonresident defendant, the court held that:

The computer game indus:tr.Yis primarily located in

California. Therefore, defendant's conduct is likely to have
an effect in the forum state. As Defendants should know their

21
 actionsare likely to causehanDin California, underthe
'effects test,, the purposefulavailmentrequirementnecessary
for specificjurisdiction is satisfied.

49 U.S.P.Q.2dat 1473(emphasissupplied);seealso CableNewsNetwork

v. GoSMS.Com, 56 U .S.P.Q.2d 1959 (S.D.N.Y. 2000) (holding that a

California defendantwas subjectto New York jurisdiction where defendant

"should havereasonablyexpectedthe transmittal of copyright infringing

content. . .to have consequencesin New York.").

The recordprovidessubstantial,credible and competent

evidence,much of it from his own sworn statements,that Pavlovich

expresslyaimedhis intentional conductat the Stateof Califomi~ knowing

that significant injury would be felt by threeof California's largestand

most importantindustries,and,specifically, by DVD CCA. As DVD CCA

demonstrated, and as the Court of Appeal found, Petitioner has admitted

that:

. Petitioner's goal-- through the LiVid project -- wasto

developan unlicensedDVD player that would useDeCSSto
decryptDVD data- copyrightedmotionpictures(Appellate
Opinion at 912; Pavlovich Aug. Depo.,pp. 28, 30-33);
. At the time PetitionerpostedDeCSSon the Internet,he knew
that DeCSSfacilitatesthe pirating of motion pictureson
DVDs (Appellate Opinion at 912; Pavlovich Aug. Depo.,pp.
59-60) andthat pirating DVDs is wrongful conduct
(Appellate Opinion at 912; Pavlovich Aug. Depo.,p. 71);

Indeed,asthe Court of Appeal opinion notes,"Pavlovich

admittedin his depositionthat 'there was an organizationthat you had to

apply for a licenseor whatever' to use certainDVD technology." Appellate

22
Opinion at 912. Nonetheless,"Pavlovich neversoughtor obtaineda

license,""admittedthat his LiVid project utilized DVD CCA's trade

secrets,"and "soughtto and actually disseminatedthosetrade secrets.

picture industry,the consumerelectronicindustry and the computer

industry was centeredin California. [d.

Thus,Petitionertargetedhis conductat the motion picture,

consumerelectronicand computerindustriesin California and did not

simply engagein "general," "untargeted"acts,ashe claims.21

Petitioner'scontentionthat the effectstest requiresa

defendantto intentionally target a specific, known plaintiff ratherthan an

"industry" beforejurisdiction can be exercised(Pet.Br.,pp. 24-30) is

20Pavlovi.ch'sclaim that he did not know DVD CCA's actualnameor precise

location until commencementof this lawsuit (petition, p. 25) is similarly
irrelevant. The salientfacts are that Pavlovich (I) knew "there was an
organizationwhich you had to file for or apply for a license" to usecertainDVD
technology(pavlovich Aug./ Depo.,p. 24-25, 86-87; Pavlovich July Depo.,pp.
86-89; and (ii) knew or shouldhaveknown that his conductwould affect this
licensingentity's California interestsbecausehe knew the motion picture,
consumerelectronicsand computerindustriesarelocatedin California. See,e.g.,
Core-Ven!v. Nobel Indus., 11 F.3d at 1486.
21 It is for this reasonthat Pavlovich's relianceon Callaway Gol/Corp. v.
Royal CanadianGolf Ass'n, 125F.Supp.2d1194(C.D.Ca!.2000), is
unfounded. Whereasthe defendantthere "merely" knew that "a corporate
defendantmight be locatedin California," (Id. at 1206)(emphasis
supplied),Pavlovich knew that DVD CCA and others"~Q.Y1.Q feel the brunt
of the effects of [his] actionsin California." [d. (emphasissupplied).

23
completelyunfounded. As the California Court of Appeal for the Fourth

District recently stated:

[T]he defendant's forum related activities need not be

directed at the plaintiff in order to give rise to specific
jurisdiction [T]he nexus reQuired to establish s}2ecific
jurisdiction is between the defendant. the forum. and the
litigation - not between the }21aintiff and the defendant.

CassierMining Corp. v. Superior Court (1998) 66 Cal.App.4th 550, 557,

citing VansCompanies,Inc. v. SeabestFoods,Inc. 1996) 14 Cal.4th 434,

455 (emphasissupplied), The Ninth Circuit has madeit equally clear that

"express aiming" means express aiming at the forum state, not necessarily

at a specificparty. SeeBancroft & Masters,Inc. v. AugustaNational, Inc.

223 F.3d 1082(9th Cir. 2000)

In the instantcase,the Court of Appeal similarly statesthat

Neither does Calder ISlanguage suggest that the defendant

As the court keenly observed in Cassiar Mining Corp. v.
must
have
known
of
the
plaintiffs
identity
and
location
Superior Court (1998) 66 Cal.App.4th 550, 557, 78: "[T]he
defendant'sforum [related] activities neednot be directedat
,T]he nexus required to establish specific jurisdiction is
the
plaintiff
in
order
to
give
rise
to
specific
jurisdiction
between the defendant, the forum, and the litigation--not
between the plaintiff and the defendant.

Appellate Opinion at 918. (Italics in Appellate Opinion, citations

omitted). 22

22Similarly, in Gutierrezv. Givens,1 F .Supp.2d1077(SD.Ca. 1998),the

defendants,non-residentsof California, attemptedto hide assetsfrom
potential creditors. Thesepotential creditorswere more than 29,000class
plaintiffs in a classact\onlaw suit. Despitethe fact that the defendantsdid
24
 Pavlovich citesBancroft & Masters,Inc. v. AugustaNational,

Inc., 223 F.3d 1082, 1088(9th Cir. 2000), for the propositionthat a

defendant'sout-of-stateconductmust be aimed at an individual or

particularentity in order to meetthe expressaiming standard.This

contentionis belied by the very wording of the effects test itself, as stated

by the Calder court and reiteratedby very the Bancroft court cited by

Pavlovich. The relevantjurisdictional test is expressaiming "at the forum

state,"not at a particular entity in the state,much lessat the particular

plaintiff in the suit. Thus, in Calder, the SupremeCourt statedthat the

defendants"intentional, and allegedlytortious, actionswere expressly

aimedm California," (465 U.~. at 783) not "at the plaintiff in California".

And, in Bancroft, the court statedthat: "the letter was expresslyaimed.@!

California, becauseit individually targetedB &M, a California

corporation...." Bancroft & Masters,Inc. v. AugustaNational, Inc., 223

F.3d 1082, 1088(9th Cir. 2000) (emphasissupplied).

As the Court of Appealspointed out below:

Pavlovich misreadsBancroft. Bancroft did not interpretthe

"expressaiming" requirementof Calder to meanthat the
defendantmust know the identity and location of the plaintiff
when it undertakesthe wrongful acts. Bancroft statedmerely
that it understoodthe expressaiming requirementof Calder

not aim their conductat any particular, known, California party, the court
ruled that they "knew or shouldhaveknown that their actionswould later
iRjurejudgementcreditorsin California." Id. at 1082. Thus,the court
feund,jurisdictionwasproper.Id.

2S
 to be "satisfied when the defendantis allegedto have engaged
in wrongful conducttargetedat a plaintiff whom the
defendantknows to be a residentof the forum state."
(Bancroft,supra, 223 F.3d at p. 1087.) Bancroft did not say
that targetingthe wrongful conduct"at a plaintiff whom the
defendantknows to be a residentof the forum state" is the
only way to satisfy Calder IS"expressaiming" requirement.

AppellateOpinion at 918 (emphasissupplied).

The Edmundscase,also cited by Pavlovich, is not an "effects

test" caseandthereforedoesnot evenaddressthe issueof expressaiming.

Rather,in Edmunds,as Pavlovichhimself states,jurisdiction was found to

be improperbecausethe defendant'saction merely "set into motion events

which ultimately injured a California resident." Pet.Br.,p. 23, citing

Edmundsv. Superior Court, (1994) 24 Cal.App.4th221.23 By contrast,

Pavlovichengagedin intentionalconductknowing and intendingthat the

conductwould affect partiesin this State.

Similarly, Cybersell,24Calloway25 and Gordy26(cited by

Petitioner)are inapplicableto the questionspresentedhere. Thosecases

involved only injury to individual plaintiffs, not to any industry. Thus~

thosecourtsdid not needto reachthe "industry" question. Eachof those

23The defendantwas an Hawaii attorneyrepresentinga California company

in a Hawaii lawsuit. Edmundsat 224.

2SCalloway Golf Corp. v. Royal CanadianGolf Ass'n, (C.D. Cat. 2000)

2000U.S. Dist. LEXIS 19032.

26
cases,however,doesspecify that the relevantquestionunderthe effectstest

is the targetingof the fQn!m ~.

According to Pavlovich's contraryview, a personwho tired a

bullet into California could be suedin California only if he fired with the

intent to hurt a particular, known, California party. A personwho simply

stoodat the Nevadaborder and fired randomly into this Statecould not,

underPavlovich's framework, be broughtto answerfor his conducthere.

Similarly, underPavlovich's formulation, a party could cometo the Nevada

borderand,without fear of California courtjurisdiction, releasefruit flies

into this Statein order to generallysabotagethe citrus industry. According

to Pavlovich,only if the sabot~urhad a particular companyin mind as a

target- ratherthan a generalindustry could he be called to answerfor his

conducthere. The law cannotturn on suchdistinctions,asthe Stateof

California clearly is entitled to protect its citizens,its businessesand its

industriesfrom out-of-statetortfeasors.

3. Pavlovich's Conduct Caused Harm That He Knew

Or Reasonably Should Have Known Was Likely To
CauseHarm In California

As a leaderin the "open source"movement,a computer

engineeringstudent,the presidentof a technologystart-upcompany,and a

technicianin the computerand telecommunicationsindustry, Pavlovich

was certainly awarethat posting infonnation on the Internet would make

that infonnation availableto a large and geographicallyscattered

27
populationof individuals and organizations. Indeed,that was his intention

asthe founderandproject leaderof the LiVid group,which seeksto create

unlicensedDVD decryptionapplications. PavlovichAug. Depo.,pp. 22-

25. Pavlovich cannotnow claim to havebeennaIveor unsophisticatedin

his understandingof the impact his actionswould have.

The record,indeed,demonstratesthat Pavlovich's intentional

actionsdid, in fact, causehanDin California, ashe knew they would.

Specifically,by intentionally posting or participating in the dissemination

ofDVD CCA's proprietarytechnologyon the Internet,Petitioner

threatenedthe very existenceofDVD CCA, a California trade association,

which is the sole licensor of the intellectual property misappropriated by

I

Petitioner. Petitioner's conductalsojeopardizedthe economicviability of

the dozensof CSSlicenseesin the computerand consumerelectronics

industriesin California. SeeComplaint,' 52-53;Appellate Opinion at 912

Finally, Petitioner's conductput at risk one of the principle assetsof the

motion picture companies their copyrightsin their motion pictures,

Petitionerknew thesecompanies~ in fug (not simply "reputedto be")

in Califomia.27

21
AppellateDecision at 912, citing DepositionAdmissions.

28
 B. The Court Of Appeal's Decision Is Consistent With The
Dictates Of Calder

Pavlovich identifies eight points which he claims

meaningfully distinguishthis casefrom Calder. He is wrong.

The m! point raisedby Pavlovich is the allegedly"non-

commercial"natureof his activities. No caselaw cited by Pavlovich and

no caselaw in existence,to DVD CCA's knowledge- makesjurisdictional

detenninationsbasedon whethera tort was committed"for profit" as

opposedto for other motives. Pavlovich offers no rationalewhy such

considerationsshouldmatter,and indeedthey shouldnot. Thus, this is a

distinction without a difference.

Second,Pavlovich claims that becauseDVD CCA "does

businessworld-wide" it is lesslikely to suffer harm in one geographic

location. As Panavision,3DO and other casesdemonstrate,however,

where a defendantknew or shouldhaveknown that the brunt of his conduct

would be felt in a particular forum --because,for example,the movie

industry is centeredthere- he shouldexpectto be called into court in that

forum to answerfor his conduct.

Thi!.4,Pavlovich allegesthat his conducthannedonly the

Japaneseentitieswho originally licensedCSS. This is incorrectbecausehis

conducthasharmedand continuesto harm DVD CCA, its licensees,and

the movie, computerand consumerelectronicsindustries.

29
 Fourth, Pavlovich allegesthat he had no interactionwith

California residents. This is of no relevanceunderthe effectstest. Further,

Pavlovichadmitsthat somemembersof his LiVid video project, including

somewho contributedto the host website,may have beenlocatedin

California. SeePavlovich Aug. Depo.,p. 19.

fifth, Pavlovichallegesthat the websiteat issuewas not

underhis "sole control." On the one hand,Pavlovich allegesthat the

websitewas "passive" (seePavlovich's ~ point, infra) and could not

thereforereceiveinput from California users. On the other hand,he now

claimsthat the websitewas not underhis sole control and receivedinput

from an "unconstructedgrouP.of contributors," someof which may have

beenin California. Legally, however,all that mattershereis that Pavlovich

foundeda group, for which this websiteservedas a host, that was dedicated

to the developmentof an unlicensedDVD player utilizing wrongfully

obtainedintellectual property. WhetherPavlovich misappropriatedthose

tradesecretsaloneor in concertwith an "unconstructedgroup of

contributors,"jurisdiction is proper in California.

~, Pavlovich claims that the LiVid websitewaspassive

and did not solicit information from California. This is inconsistentwith

Pavlovich's other statements(seehis Eif1hpoint, supra) and with his sworn

statementthat certain contributorsto his LiVid site may havebeenin

30
California. Pavlovich Aug. Depo.,p. 19. Further,the passivity and

commercialnatureof a websiteare irrelevantunderthe effectstest.

Seventhand Eighth, Pavlovichreiteratesthe "intent" and

"targeting" points that were addressed,supra, in point I.A

The Court of Appeal decisionis fully consistentwith Calder

and correctly determinedthat Pavlovichpurposefully availedhimself of a

California forum.

II. The Claims Arise From Pavlovich's Forum-Related Activitv

There is similarly no merit to Pavlovich's assertionthat DVD

CCA's claims do not arise directly from Pavlovich's forum-relatedconduct.

In California, courtsusea "bu,t-for" test to detenninewhethera particular

claim arisesout of forum-relatedactivities. See,e.g.,Ballard v. Savage,65

F.3d 1495,1500(9th Cir. 1995). Thus,the questionis: but for Pavlovich's

forum-relatedconduct,would DVD CCA's claims againstPavlovichhave

arisen? The answeris clearly no. If Pavlovichhad not misappropriated

28Petitionerclaimsthat the Court of Appeal's decisionis in conflict with

JewishDefenseOrganizati~n,Inc. v. Superior Court, 72 Cal.App.4th 1045
(1999) and CybersellInc. v. Cybersell,Inc. 130F.3d 415 (9th Cir. 1997).
He is incorrect. Pavlovich relies on thesecasesfor the propositionthat the
degreeof interactivity and the commercialnatureof a web site are relevant
underthe effectstest. This argumentignoresthe initial holdings in Jewish
DefenseOrganizationand Cybersellthat the effects test had not beenmet
becausethe defendant'sactionsdid not createa "foreseeablerisk of injury"
in California. Only after making this thresholddecisiondoesthe court look
to the interactivity and commercialnatureof the web site in questionasan
alternativemeansof determining'purposeful availment' for jurisdictional
purposes.That is not the casehere,nor doesPetitioner argueotherwise.

31
DVD CCA's trade secrets,then DVD CCA's claims for misappropriation

againstPavlovichwould not have arisen.

Pavlovichclaims that the Court of Appeal erredin evaluating

this issuewhen it consideredthe effect misappropriationofDVD CCA's

tradesecretshad on the unlawful "distribution of copyrightedmaterial of

California Companiesor the pirating ofDVDs." Pet.Br.,p. 37 (citations

omitted). Pavlovich claimstheseeffects are irrelevantherebecause"there

is no allegationthat Petitionerwas involved in either activity." Id. To the

extentthis argumentis relevantat all, it is incorrect. DVD CCA does

allegethat Pavlovich andthe other defendantsfacilitated the unlawful

distribution of copyrighted motion pictures and the pirating ofDVDs by

,

disseminatingDVD CCA's trade secretsin the fonD of computer

decryptiondevicesincluding DeCSS. Complaint~ 45-74.

III. Jurisdiction Here Comnorts With Notions of Fair Pla~ and

Substantial Justice

Finally, not only is it fair andjust for the SuperiorCourt to

exercisejurisdiction over Pavlovich, any otherresult would run contraryto

accepteddueprocessanalysis. "An otherwisevalid exerciseof personal

jurisdiction is presumedto be reasonable.Accordingly, once a court fmds

purposefulavailment,it is the defendant'sburdento presenta compelling

casethat the exerciseof jurisdiction would be unreasonable."Nissan

32
Motor Co.,Ltd., 89 F.Supp.2dat 160. Here, Pavlovich comesnowhere

nearmeetingthis burden.

In detern1iningwhetherjurisdiction over a nonresident

comportswith notions of fair play and substantialjustice underthe due

processclause,courtsweigh sevenfactors:

(1) the extentof the defendant'spurposefulinterjection into

the forum state'saffairs;
,.} the burdenon the defendantof defendinga suit in the
forum;
(3) the extentof conflict with the sovereigntyof the
defendant's state;
(4) the forum state'sinterestin adjudicatingthe dispute;
(5) the most efficient judicial resolutionof the controversy;
the importanceof the forum to the plaintiff's interestin
convenientand effective relief; and
the existenceof an alternativeforum.

Core-Vent Corp., F.3d at 1487-88. No single factor is dispositive..Id.

In the Court of Appeal below and in his Petition to this Court,

Pavlovich lists just five of thesesevenfactors(numbersone,two, four, five,

and seven)29
and discussesonly four of them (numbersone,two, four and

29 The 1959casecitedby Pavlovich(FisherGovernorCo.v. Superior

Court, 53 Cal.2d222), fails to list factor three:the importanceof the forum

to the plaintiff's interestin convenientand effective relief; and factor six:
the extentof conflict with the sovereigntyof the defendant'sstate. See
PavlovichPA, p. 9. As demonstratedbelow, both of thesefactorsoperate
in of favor exercisingjurisdiction here.

33
seven). In his Brief on the Merits to this Court, he lists and discussesall

sevenfactorsfor the first time.

All sevenfactorsfavor the exerciseof jurisdiction over

Pavlovich. Factorsfour through seven,in particular, strongly militate in

With regardto factor four, California hasan immeasurably

large interestin adjudicatingthis dispute. Even Pavlovich recognizesthis

interest. Pet.Br.,p. 41. DVD CCA is a trade associationfonned by three

industries with a tremendous presence in the California economy - the

motion picture industry, the computer industry and the consumer

electronics industry. Complai,nt, ~ 40-44, Pavlovich's actionsstrike at the

core of theseindustriesand affect their ability to operateeffectively in the

30 With regardto the first three factors: The extent of Pavlovich's intrusion
into California -- factor one -- hasbeenestablishedabove. SeeSectionI.A.,
supra. The burdenon Pavlovich in defendingthis suit in the forum - factor
two -- is minimal. Pavlovich is representedby the samecounsel
representingthe California defendantwho hasappearedin this action. If
this suit were filed in anotherjurisdiction, Pavlovichwould haveto incur
the additional expenseof hiring counselin that state. At most, Pavlovich
would haveto cometo California for the trial itself. This would be true in
the caseof any nonresidentdefendantand thereforecannotoperateas a
reasonto denyjurisdiction. Further,Pavlovichwillingly traveledfrom
Texasto New York to participatein UniversalStudios,Inc. v. Reimerdes.
Thus,Pavlovich's complaintsabouthaving to travel to California for this
trial ring hollow. Moreover,the burdenon the defendantis no longer
heavily weighedby courtsin determiningjurisdiction. SeePanavisionat
1323. And, Pavlovichhastraveledto California to attendoral argumenton
this jurisdictional issuein the Court of Appeal. As for factor three,there is
no conflict with the defendant'sstate,nor doesPavlovich claim so. In fact,

34
emergingInterneteconomy. Thus, California maintainsa stronginterestin

providing an effective meansof redressfor its residentsinjured by

commercialmisappropriation.

With regardto factor five, the efficient resolutionof this

controversyclearly requiresthat all defendantsbe tried in onejurisdiction.

In fact, the one casecited by Pavlovich on this point highlights "the

avoidanceof a multiplicity of suits and conflicting adjudications"as a

major factor to be consideredwhen deciding whetherto exercise

jurisdiction. Fisher Governor Co., 53 Cal.2d at 225-26, y e~ if jurisdiction

over Pavlovich is not upheld,DVD CCA will be forcedto suethe

defendantsin this casein the ~ozensof jurisdictions in which they reside

Nothing could be lessefficient. The underlying facts and legal issues

surrounding each defendant are virtually identical - they all postedthe trade

secretson their web sites. Arguing and re-arguingthesefactsand legal

issuesin many different jurisdictions ensuresthe wasteof valuablejudicial

resourcesandrisks the promulgationof conflicting verdictsand court

rulings. California, asDVD CCA's primary place of businessand as the

site of the greatestinjury, is undeniablythejurisdiction in which this case

shouldbe tried. Pavlovich claims that many witnesseswith relevant

infonnation to this casemay exist in Norway, England,New York and

evenPavlovichcontendsthat this factor is of only slight relevancehere

Pet.Br.,pp. 40-41.
35
Connecticut. This point is irrelevant herebecausePavlovich would surely

contestjurisdiction in thoseforums aswell. Further, asPavlovich admits,

at leasttwo key witnesses,aswell asplaintiffDVD CCA, are locatedin

California. Pet.Br.,p. 4

For thesesamereasons,factor six the plaintiffs interestin

convenientand effective relief. demandsthat this casebe heardin a single

jurisdiction: California. The expenseand inconvenienceof pursuing

identical casesin a multiplicity of jurisdictions would be an extraordinary

burdenfor DVD CCA. Further, the possibility of conflicting adjudications

risks renderingany reliefDVD CCA doesobtain ineffective.

With regardto f~ctor seven,thereis no alternativeforum in

which DVD CCA's claims can be as effectively pursued. It is California

which hasthe greatestinterestin the outcomeof the litigation and

California wherethe brunt injury hasoccurred. California is uniquely

appropriateasa site to pursueclaims againstall the defendants.

.cONCLUSION

Contraryto Pavlovich's contention,the SuperiorCourt's

order and the Court of Appeal's affmnation of that order, do not undermine

the establishedrules of personaljurisdiction. Rather,they recognizethe

well-establishedprinciple that when a defendant'sintentional conduct

causeshanDfuleffectswithin this State,he canbe called to answerfor that

36
conducthere. Defendantswho misappropriatevaluabletrade secretsand

inflict injury on major interestsin California cannotbe immunizedsimply

by conductingtheir illegal activities from afar over the Internet. If the

courtsof this Statecannotredressinjuries directedat this Statethroughweb

site activity, then the power of the Internetwill becomea dangerous

resourcefor intellectual property thieves. It is fair and it is the law that

defendantswho deliberatelychoseto injure interestsin California be

requiredto answerfor their actionsin California.

WHEREFOREDVD CCA respectfullyrequeststhat this

Court affIrm the decisionof the Court of Appeal and reject Pavlovich's

Petition for a Writ of Mandate.

\

Dated: February13, 2002

WElL, GOTSHAL & MANGES LLP
Silicon Valley Office
201 Redwood Shores Parkway
Redwood Shores, CA 94065
Telephone: (650) 802-3000

By:
ROB RT . SUGARMAN
JEFFREYL. KESSLER
GEOFFREYD. BERMAN
WElL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New~York,NY 10153

Attorneys for Plaintiff

DVD
INC. COpy CONTROL ASSOCIA nON. .

37
conducthere. Defendantswho misappropriatevaluabletradesecretsand

inflict injury on major interestsin California cannotbe immunizedsimply

by conductingtheir illegal activities from afar over the Internet. If the

courtsof this Statecannotredressinjuries directedat this Statethroughweb

site activity, then the power of the Internetwill becomea dangerous

resourcefor intellectualpropertythieves. It is fair and it is the law that

defendantswho deliberatelychoseto injure interestsin California be

requiredto answerfor their actionsin California.

WHEREFOREDVD CCA respectfullyrequeststhat this

Court affirm the decisionof the Court of Appeal and reject Pavlovich's

Petition for a Writ of Mandate.

Dated: February14,2002
WElL, GOTSHAL & MANGES LLP
Silicon Valley Office
201 RedwoodShoresParkway
RedwoodShores,CA 94065

By:
(Bar No. 151650)

ROBERT G. SUGARMAN
JEFFREYL. KESSLER
GEOFFREYD. BERMAN
WElL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, NY 10153

Attorneysfor Plaintiff
DVD COpy CONTROL ASSOCIA nON,
INC.

31
 CERTIFICATE OF SERVICE

I, JeanWirdzek, herebycertify that on February14,2002, I causeda copy of Real

Party in Interest DVD Copy Control Association's Brief on the Merits to be sentvia

U.S. Mail to:

Allon E. Levy Robin D. Gross

HS LAW GROUP ELECTRONIC FRONTIER
210 North Fourth Street,Suite 400 FOUNDATION
SanJose,CA 95112 454 Shotwell Street
Fax: (408) 295-5799 SanFrancisco,CA 94110
Fax: (415) 436-9993

I causeda copy of the foregoingto be handdeliveredto:

Trial Court:
Clerk of the SantaClara County SuperiorCourt
to be deliveredto Hon. William J. Elfving
191NorthFirst Street '

SanJose,CA 95113

Appellate Court:
Clerk of the Court of Appeal
Sixth Appellate District
333 West SantaClara St., Suite 1060
SanJose,CA 95113

I declareunderpenalty of perjury, underthe laws of the Stateof California,

that the foregoingis true and correct,andthat this Declarationwas executedat

RedwoodShorestCalifornia on February14t2002.

SVI :\12~1\2 S@OI!.n0c-.42711.0003