Defendant MATTHEW PAVLOVICH (hereinafter "PAVLOVICH") submits this reply memorandum in support of his pending motion to quash service of process. Defendant’s motion, and all attendant papers and actions, are intended to serve as a special appearance pursuant to section 418.10 of the California Code of Civil Procedure. Furthermore, Defendant neither consents nor submits to the jurisdiction of this Court, instead, contesting jurisdiction by way of this motion.

In an effort to demonstrate to the plaintiffs that no basis for jurisdiction exists, defendant PAVLOVICH voluntarily agreed to an extensive jurisdictional deposition and document production request. Although the discovery yielded no contacts with California and no activities purposefully aimed at California, plaintiff persists in opposing this motion. In its opposition, plaintiff has conceded or ignored cogent defense arguments regarding lack of jurisdiction and instead opted to provide a smoke-screen of rhetoric, unfounded accusations, and untenable legal arguments in an effort to create jurisdictional contacts where none exist. Plaintiff opens by lambasting the entire "open source" movement, without citing a scintilla of evidence to support its conclusory rhetoric; suggests an incorrect basis for jurisdictional analysis (OPP at 5:9-12); and offers hyperbole and innuendo in place of actual minimum contacts with California. The defense urges the Court to look past plaintiff’s bluster and hold that plaintiff has failed to meet its burden of proving sufficient jurisdictional contacts on the part of PAVLOVICH.

In the interest of relative brevity, PAVLOVICH incorporates by reference all arguments presented in moving papers, and will endeavor not to repeat those arguments here.

Plaintiff has properly conceded the lack of general jurisdiction by not raising the issue in its opposition, therefore this brief will not address issues of general jurisdiction. On the issue of specific jurisdiction, plaintiff has fallen woefully short of satisfying its burden of proving the existence of personal jurisdiction over PAVLOVICH.

In order to satisfy this prong of the jurisdictional test, Plaintiff must show that defendant has deliberately directed his/her activities at the residents of the forum state or has deliberately availed himself/herself of the benefits and protections of the state (Hanson v. Denckla (357 U.S. 235, 253 (1958). For example, in the case of McGee v. International Life Ins. Co. 355 U.S. 220 (1957), cited by Plaintiff, the defendant insurance company did business with a California resident, mailed a reinsurance certificate to the decedent in California, and accepted premiums by mail from the California resident. No such purposeful acts, directed at California have been identified by Plaintiffs.

Plaintiff’s attempted reliance on the case of Calder v. Jones 465 U.S. 783 (1984), and its well known "Calder effects test" is similarly unavailing. In Calder, the defendant sold 600,000 magazines (more than in any other state) in California, frequently traveled to California, made phone calls to California to obtain the information that went into the article which was the subject of the lawsuit, called the California plaintiffs in California to solicit a comment about the subject article, and declined to print a retraction request sent by the California plaintiffs (Id, at 783-786).

By stark contrast, here, PAVLOVICH was a student when this suit was instituted, his newly formed business has nothing to do with this case (see deposition of PAVLOVICH attached as exhibit "A" to the declaration of Allonn E. Levy, hereinafter "exhibit A" at pp.11-12) and has no connection with anyone from California (exhibit A at p.44:4-12; 48:22-25). Additionally, PAVLOVICH had no knowledge of plaintiff DVD CCA’s existence, much less its location, prior to the filing of the instant lawsuit (exhibit A, at p.91:22-25). Also, plaintiff has not contested the fact that PAVLOVICH has neither operated, nor had sole control over any "LIVID" web site that may have contained DeCSS (see declaration of PAVLOVICH filed June 6, 2000, hereinafter referred to as "PAVDEC-1" at p.2:15-27). Also not in dispute is the fact that PAVLOVICH did not develop any part of DeCSS (exhibit A, p. 56:23-24) and that DeCSS was not utilized in the LIVID project (exhibit A, p.57:9-13). It is similarly uncontroverted that "Neither the site, nor the information on the site, was specifically directed at citizens of California" (PAVDEC-1 at p.2:23-26) and that no part of the posting came from any known California contact.

In short, PAVLOVICH did not interact with the plaintiff (as is the case in Calder, McGee, Panavision Inter’l, L.P. v. Toeppen, 141 F.3d 1316 (9th Cir. 1998) and other "effects" cases), did not direct activities at California, and did not purposefully interact with Californians in conjunction with the instant case.

Plaintiff is a technology licencing entity (OPP at p.3:16-18). It is a small and fairly obscure organization charged with licensing CSS technology. It is not a movie producer, or a studio, and it is located in Morgan Hill California – not Hollywood. Thus any general knowledge PAVLOVICH had about a movie industry’s presence in California, or a Computer industry presence in California is of no consequence – to hold otherwise would create a permanent legal forum for every single dispute tangentially related to either industry.

Again, the facts at hand run counter to cases where Courts have found jurisdiction based on "effects." The Supreme Court in Calder noted:

Calder at 789-790.

Similarly in Panavision, supra, the Court found jurisdiction on the basis of the defendant’s targeted extortion scheme aimed directly at plaintiff Panavision (Id at 1319). The scheme included direct contact with the California business, relating to the subject of the case, and an attempt at obtaining $13,000 in exchange for Panavision’s trademarked domain names (Id at 1319).

If the Court were to follow the logic put forth by plaintiffs, instead of the law as outlined in Calder and Panavision, the results would be absurd. Holding that mere knowledge of an industry presence in a particular forum provides jurisdiction for any dispute remotely touching on that industry’s subject matter would offend Due Process and lead to an obliteration of traditional jurisdictional requirements. For example, by DVD CCA’s logic, a Florida DVD warehouse, could sue its Colorado DVD supplier, over a contract dispute, in California, so long as the Colorado Supplier knew that the motion picture industry operates in California. Such a result runs counter to common sense and counter to established legal precedent.

The only manner in which plaintiff can properly fulfill the effects test in this case is if it could show that PAVLOVICH’s knew his activity would affect a California party – a factual impossibility in this case since PAVLOVICH did not know of the existence of the only party and because PAVLOVICH is simply charged with being a republisher of information. It is well settled that personal jurisdiction does not extend to a non-resident defendant by virtue of "random, fortuitous or attendant..." contacts over which the defendant had no control (Burger King v. Rudzewicz, 471 U.S. 462, 475-76, 485 (1985)). Here, PAVLOVICH didn’t target a California plaintiff, he simply had some input into a passive web site that had information DVD CCA wishes to restrain. As the Court in Cybersell v. Cybersell 130 F.3d 414, 418 (9th Cir. 1997) noted: "Creating a site, like placing a product into the stream of commerce, may be felt nationwide or even worldwide – but, without more, it is not an act purposefully directed toward the forum state."

Assuming arguendo that DVD CCA had "standing" to argue that the California motion industry was affected by PAVLOVICH’s alleged publication of DeCSS, it would be estopped from doing so by the industry’s own admissions that no such effects have occurred. In the case of Universal Studios, Inc. V. Reimerdes, 00 Civ. 277 (S.D.N.Y 2000), plaintiffs (the eight major motion picture studios) amended their complaint to drop any claim for damages related to DeCSS (see portions of trial transcript from Universal Studios, Inc. V. Reimerdes, supra, attached as exhibit "B" to the declaration of Allonn E. Levy, hereinafter "exhibit B" at pp.713-714). Similarly, Michael Shamos, an expert (exhibit B at pp.18-23) retained by the motion picture industry conceded that other than his own tests, paid for by the studios, he knows of no one who has copied a DVD using the DeCSS program available on the web (exhibit B at p.128-129; 129:9-25; 130:1-8) similar comments were made by other MPAA witnesses (exhibit B at pp.399-435; pp.237-344 (qualification as expert); p.294:8-25).

Finally, although DVD CCA appears to suggest piracy is a harm attributable to DeCSS, they offer no evidence to support their conclusion. In fact, during his deposition, PAVLOVICH indicated that according to his knowledge, copying a purchased DVD onto a hard drive either as a back-up or to "space-shift" viewing to a different machine constituted legal "fair use" (exhibit A at p.70:17-25) and not piracy.

Plaintiff also appears to argue that jurisdiction exists because a PAVLOVICH post states that reverse engineering is illegal (OPP at p.8:21-24). This argument is particularly troubling since reverse engineering is not illegal (Cal.Civ.Code §3426.1(a)). This appears to be the only reference even remotely related to plaintiff’s contention that PAVLOVICH knew that the "computer technology industry" does business in California among other places. Similarly unavailing is plaintiff’s observation that PAVLOVICH was aware that certain DVD technology was available from an unknown entity, in an unknown location, at an unknown time. The relevant facts are simple: PAVLOVICH did not know that DVD CCA existed at the time of the allegedly wrongful conduct, could not know that DVD CCA did business in California, and couldn’t direct conduct at it.

While DVD CCA trumpets the fact that PAVLOVICH was aware that the computer industry exists in the Silicon valley (and elsewhere), it offers no facts to support the conclusion that this observation supports grants California jurisdiction over PAVLOVICH.

In the recent case of Jewish Defense Organization Inc. v. Superior Court, supra, the Court of Appeals reversed the trial court's denial of a defendant's motion to vacate default judgment and quash service of process. In J.D.O., the out-of-state Defendant was alleged to have published information on a world-wide web site which became the subject of a lawsuit. The J.D.O. defendant also used the U.S. mail to contact a California resident, had previously resided in California, contracted with a California Internet service provider (ISP) to host the Web site that contained the published information that was the basis of the lawsuit, and appears to have known the California plaintiff.

In performing a complete jurisdictional analysis, including general jurisdiction, specific jurisdiction and the "effects test," the Court in J.D.O. held that the lower Court’s finding of jurisdiction was reversible error. In finding a lack of jurisdiction, the Appellate Court noted that publication of a libel that reaches a particular forum does not permit a finding of jurisdiction in that forum (Id at 1058; also citing Core-Vent Corp. V. Nobel Ind. AB 11 F.3d 1482 (9th Cir. 1993).

The case at bar is not a traditional trade secret claim. Rather it is an injunction action filed under the UTSA’s republication provisions. Since the only allegation against PAVLOVICH is that he allegedly republished DeCSS on a web site, the case is on all fours with the web publication scenario in J.D.O.

Here, PAVLOVICH has far less forum contacts than were evident in J.D.O. As noted previously, PAVLOVICH did not know of the existence of DVD CCA, did not purposefully direct activity towards California, could not have foreseen any harm in California as a result of his alleged republication of a computer code, has had almost no contact with California, and is involved in a business that has nothing to do with California or with this action.

Defendant PAVLOVICH has no connection with California. He was a student, in Indiana at the time he was sued and currently resides in Texas. PAVLOVICH does not reside in California and does not have any regular clients or work in California. 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. The web site plaintiff's are assumed to attribute to PAVLOVICH in their complaint was a "passive" web-site that did not involve the interactive exchange of information with users, did not solicit or engage in business activities, and did not solicit contact with California residents.

PAVLOVICH cannot have targeted his action at either DVD CCA or California since he was not aware of the existence of DVD CCA (much less their place of business) prior to the filing of this lawsuit. Accordingly, to the extent that Defendant PAVLOVICH may be involved in the events which are the subject of this lawsuit, his involvement cannot be described as a purposeful contact with California. Since California has no real relationship with this Defendant, it is not reasonable to require PAVLOVICH to defend pending litigation in California.

For all of the above reasons, California does not have personal jurisdiction over Defendant PAVLOVICH; therefore, Defendant’s motion to vacate default and/or default judgment and quash service should be granted.

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