However, the basics are that it was dismissed on a technicality (over a failure to plead the willfulness, which is necessary for criminal infringement), and the government has 30 days to amend and refile its complaint -- which is quite likely.
That's it? The only defect was failure to plead willfulness? That's disappointing. I was hoping for something more exciting.
That's a good point. That consideration would factor into the reasonableness prong of personal jurisdiction under World-Wide Volkswagen, I think. It certainly weighs in Facebook's favor.
I think if the lawsuit arose from the contacts Faceporn had made in California with users, then there would be jurisdiction. The problem is these contacts have nothing to do with the trademark claim (as far as I know), so they don't serve to create specific jurisdiction (and there is no general jurisdiction). But if Facebook is arguing that Faceporn reached out to cause them harm in California, then that would establish minimum contacts under Calder v. Jones. That might be a better argument.
Facebook argued that a .com was specifically targeting by virtue of it being a US TLD
The court stated that this was not correct since self evidently the ".com" TLD is now used everywhere and is ubiquitous, and therefore the original purpose of the .com TLD which was to only be for commercial ONLY USA entities is nullable and that the average moron in a hurry has no inclination to think that a .com means that the entity has to reside in the USA only anymore.
I haven't read the complaint or anything else in the case, but according to the document embedded above Facebook argued two reasons for finding personal jurisdiction: (1) Faceporn has hundreds of U.S.-based users, and (2) Faceporn targets the U.S. by using a ".com" address. I agree that the second argument is pretty weak, but the first argument could carry the day. The problem for Facebook though is that there's been no discovery for them to get access to the facts that would help prove jurisdiction.
They were NOT specifically targeting the US, and if you do a quick calculations of the percentage of actual USA Faceporn users compared to the amount of USA FaceBook users you are in the realm of less than even de minimus.
I don't follow the logic. The ratio of Faceporn to Facebook users is irrelevant.
They weren't specifically targeting US citizens by any stretch of the imagination and the confusion that might of been caused is so minute as to be indistinguishable from zero.
I've never been to Faceporn, but I'm not sure how you can say that they didn't target U.S. users. What facts are you basing this on?
Just because CA has a so called long-arm statute does not mean it can be used for the ridiculous and absurd. I'd also hazard a guess that the "something more" would be what a reasonable person would expect and seems that this court has strangely (for CA anyway) found some reasonable persons. Whodathunkit
The California long arm statute allows the courts in California to exercise personal jurisdiction to the full extent of the Due Process Clause. If 250 users from California created accounts on Faceporn, thereby entering into contracts with Faceporn, then maybe it's not so ridiculous for California to exercise jurisdiction.
Of course, the problem there is that those contacts have nothing to do with the trademark claims. Generally, the contacts have to be related to the claim to count, and here that may be missing. I dunno. Without more facts it's hard to say.
yes i was wondering how this affects the ICE stuff too.
This is a slightly different issue that the domain name seizures. The type of personal jurisdiction being sought here is "in personam" jurisdiction. The court wants Facebook to show why a California court has jurisdiction personally over the defendants who are from Norway. Since the defendants are not actually in California, Facebook will have to show that the defendants reached out to California, establishing minimum contacts with the state.
With the domain name seizures, the type of personal jurisdiction being sought is "in rem" jurisdiction. Instead of going after the people behind the sites, they're going after the domain names themselves. "In rem" means "in the thing" or "against the thing" in Latin. If the thing isn't located in a particular state, then the court can't exercise jurisdiction over it unless there's minimum contacts.
So basically in personam and in rem jurisdiction ask the same questions: (1) Is the person or the thing within the state? If so, the court can generally exercise personal jurisdiction. (2) Is the person or thing without the state? If so, then the court cannot exercise personal jurisdiction unless there's minimum contacts with the state.
Now, where a domain name exists depends on where it's registered. If I register facebookster.com with a registrar in Pennsylvania, suit could be brought against that domain name in Pennsylvania. Suit could also be brought in California where Verisign is located since they are the registrar for ".com" domain names.
ICE's domain name seizures orders are coming from the court in the Southern District of New York (SDNY). I don't see how that court has in rem jurisdiction over the domain names.
Take rojadirecta.org for example. The owner is from Spain. They registered through GoDaddy in Arizona. The ".org" registry is in Virginia. And the Rojadirecta servers are in Canada. There's no connection to New York--no minimum contacts that would allow New York to exercise jurisdiction over the defendant domain names. The only connection to New York that the government has claimed is that their investigators in New York accessed Rojadirecta while investigating the case. A unilateral contact like that is insufficient to establish jurisdiction (and I think that differs from the situation here where faceporn has established hundreds of contacts with the state).
The judges in New York who are signing these seizure warrants for ICE to seize domain names should be asking the government to show how New York has in rem jurisdiction over the domain names.
250 users in California isn't minimum contacts/purposeful availment in California? I'm not sure I buy that. Nor do I understand the "something more" requirement. If California's long arm statute is coextensive with the Due Process Clause, then what "more" than minimum contacts is needed to establish personal jurisdiction?
Specifically, subject matter jurisdiction. Listing alternative bases for dismissal in addition to lack of personal jurisdiction wouldn't be as big a deal.
Yes, thank you. What I said applies only to subject matter jurisdiction. Personal jurisdiction works differently since the court generally won't consider it unless the defendant challenges it. And if the defendant doesn't challenge it early on, it's waived. Here, Hoehn at first reserved the right to challenge personal jurisdiction but then later waived that right, if I recall correctly.
Once again, you've cited no law that says a court cannot provide alternate bases to rule on an opinion. How many times to I have to repeat this?
My understanding is different, and I think is amply supported by the text I quoted above. You can have alternate bases in general, but not when it comes to jurisdiction. A court has a duty to determine up front and on its own whether it has subject matter jurisdiction, even if the parties don't raise the issue themselves. Once a court determines it does not (and let's assume there was leave to amend and all that), then the only proper move is to dismiss. The judge can't be wishy-washy when it comes to jurisdiction. A "federal court may not hypothesize subject-matter jurisdiction for the purpose of deciding the merits." Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999). That says it all. The court must decide either: (1) the court has subject matter jurisdiction, or (2) the court does not have subject matter jurisdiction. There is no "maybe I do and maybe I don't" as you suggest.
It says: "JURISDICTION 8. This Court has original subject matter jurisdiction over this copyright infringement action pursuant to 28 U.S.C. 1331 and 28 U.S.C. 1338(a)."
Section 1331 provides: "Federal question. The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."
Since Righthaven is suing Hoehn for violating the Copyright Act, a "law . . . of the United States," i.e., a federal law, then the district court has subject matter jurisdiction.
The other statute listed, Section 1338(a), is just an alternate statute that gives the district court subject matter jurisdiction. It provides that: "The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks."
Either one of those statutes alone suffices to establish subject matter jurisdiction.
Standing, by comparison, comes out of Supreme Court jurisprudence. It's judge-made law. Put simply, it's based on the idea that you must have the proper parties before the court before the court has the power to hear the "case or controversy." Without having the proper parties, the court cannot have subject matter jurisdiction.
But we're talking about subject matter jurisdiction, which cannot be waived, and without which the district court has no authority to decide a case, even hypothetically. A "federal court may not hypothesize subject-matter jurisdiction for the purpose of deciding the merits." Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999). "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle." Ex parte McCardle, 74 U.S. 506, 514, (1868). The requirement that jurisdiction be established as a threshold matter “spring[s] from the nature and limits of the judicial power of the United States” and is “inflexible and without exception.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). "On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it." Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453 (1900).
Now that I've read the amicus brief, I think even more that Randazza is being petulant about this whole thing. The brief doesn't even take a position on the standing issue, and it barely mentions Judge Pro's fair use analysis. Instead, it focuses on the simple truth that if there's no standing, then the fair use ruling should be vacated. Considering that that position is the correct, neutral statement of the law, Randazza's opposition to it rings absolutely hollow.
Instead of politely and professionally consenting to this brief, Randazza staged a letter and got the anti-Righthaven and anti-RIAA mouthpieces at Techdirt and TorrentFreak to try and turn this into a negative PR thing for the RIAA. That is the definition of petulance in my book.
Typically the entire use of the work in a non-transformative way isn't fair use. It wasn't transformative for Hoehn to copy and post the article for others to comment on when the original was posted as an article for others to comment on. That's a classic market substitution that copyright law protects. The judge also said that this copying wasn't for gain. That's not right either since Hoehn probably gained more page views to his website. And since the judge didn't allow discovery to commence, Righthaven couldn't really address the merits of Hoehn's defense with facts. There was other stuff I thought the judge got wrong too, but it's been a while since I've read the opinion and I don't recall the rest. But those three things alone are huge defects.
You can certainly cook up some scenario where wholesale copying is fair use, but this cut-n-paste job by the defendant isn't one of them. Don't get me wrong. I would have no problem with this being fair use--in fact I think fair use rights should be broader. But as far as applying the law as it currently exists to these facts goes, the district court did not do a good job. I suspect the Ninth Circuit would reverse the fair use ruling if they were to actually reach it.
Re: Re: Re: Re: Re: Not that I disagree with Randazza
If the Ninth Circuit panel affirms the lack of standing ruling, they'll vacate the fair use ruling as moot. So the only way the panel will look at the merits of the fair use defense is if they first find that Righthaven has standing. Wouldn't that be something? Maybe Randazza is worried the amicus brief will argue the standing issue. That might explain why he's coming out with this staged Techdirt hit piece.
On the post: Court Dismisses Puerto 80 Rojadirecta Case (For Now)... But Doesn't Give Back The Domain
That's it? The only defect was failure to plead willfulness? That's disappointing. I was hoping for something more exciting.
On the post: Breaking News: Feds Falsely Censor Popular Blog For Over A Year, Deny All Due Process, Hide All Details...
But the government has 30 days to fix whatever errors the judge found and submit a revised complaint.
On the post: Facebook Fails In Its Argument That Faceporn Is Under US Jurisdiction For Using A .com
Re: Re: Re: Re: Re: Re:
On the post: Facebook Fails In Its Argument That Faceporn Is Under US Jurisdiction For Using A .com
Re: Re: Re: Re:
On the post: Facebook Fails In Its Argument That Faceporn Is Under US Jurisdiction For Using A .com
Re: Re:
The court stated that this was not correct since self evidently the ".com" TLD is now used everywhere and is ubiquitous, and therefore the original purpose of the .com TLD which was to only be for commercial ONLY USA entities is nullable and that the average moron in a hurry has no inclination to think that a .com means that the entity has to reside in the USA only anymore.
I haven't read the complaint or anything else in the case, but according to the document embedded above Facebook argued two reasons for finding personal jurisdiction: (1) Faceporn has hundreds of U.S.-based users, and (2) Faceporn targets the U.S. by using a ".com" address. I agree that the second argument is pretty weak, but the first argument could carry the day. The problem for Facebook though is that there's been no discovery for them to get access to the facts that would help prove jurisdiction.
They were NOT specifically targeting the US, and if you do a quick calculations of the percentage of actual USA Faceporn users compared to the amount of USA FaceBook users you are in the realm of less than even de minimus.
I don't follow the logic. The ratio of Faceporn to Facebook users is irrelevant.
They weren't specifically targeting US citizens by any stretch of the imagination and the confusion that might of been caused is so minute as to be indistinguishable from zero.
I've never been to Faceporn, but I'm not sure how you can say that they didn't target U.S. users. What facts are you basing this on?
Just because CA has a so called long-arm statute does not mean it can be used for the ridiculous and absurd. I'd also hazard a guess that the "something more" would be what a reasonable person would expect and seems that this court has strangely (for CA anyway) found some reasonable persons. Whodathunkit
The California long arm statute allows the courts in California to exercise personal jurisdiction to the full extent of the Due Process Clause. If 250 users from California created accounts on Faceporn, thereby entering into contracts with Faceporn, then maybe it's not so ridiculous for California to exercise jurisdiction.
Of course, the problem there is that those contacts have nothing to do with the trademark claims. Generally, the contacts have to be related to the claim to count, and here that may be missing. I dunno. Without more facts it's hard to say.
On the post: Facebook Fails In Its Argument That Faceporn Is Under US Jurisdiction For Using A .com
Re: Re: Why not? - ICE?
This is a slightly different issue that the domain name seizures. The type of personal jurisdiction being sought here is "in personam" jurisdiction. The court wants Facebook to show why a California court has jurisdiction personally over the defendants who are from Norway. Since the defendants are not actually in California, Facebook will have to show that the defendants reached out to California, establishing minimum contacts with the state.
With the domain name seizures, the type of personal jurisdiction being sought is "in rem" jurisdiction. Instead of going after the people behind the sites, they're going after the domain names themselves. "In rem" means "in the thing" or "against the thing" in Latin. If the thing isn't located in a particular state, then the court can't exercise jurisdiction over it unless there's minimum contacts.
So basically in personam and in rem jurisdiction ask the same questions: (1) Is the person or the thing within the state? If so, the court can generally exercise personal jurisdiction. (2) Is the person or thing without the state? If so, then the court cannot exercise personal jurisdiction unless there's minimum contacts with the state.
Now, where a domain name exists depends on where it's registered. If I register facebookster.com with a registrar in Pennsylvania, suit could be brought against that domain name in Pennsylvania. Suit could also be brought in California where Verisign is located since they are the registrar for ".com" domain names.
ICE's domain name seizures orders are coming from the court in the Southern District of New York (SDNY). I don't see how that court has in rem jurisdiction over the domain names.
Take rojadirecta.org for example. The owner is from Spain. They registered through GoDaddy in Arizona. The ".org" registry is in Virginia. And the Rojadirecta servers are in Canada. There's no connection to New York--no minimum contacts that would allow New York to exercise jurisdiction over the defendant domain names. The only connection to New York that the government has claimed is that their investigators in New York accessed Rojadirecta while investigating the case. A unilateral contact like that is insufficient to establish jurisdiction (and I think that differs from the situation here where faceporn has established hundreds of contacts with the state).
The judges in New York who are signing these seizure warrants for ICE to seize domain names should be asking the government to show how New York has in rem jurisdiction over the domain names.
On the post: Facebook Fails In Its Argument That Faceporn Is Under US Jurisdiction For Using A .com
250 users in California isn't minimum contacts/purposeful availment in California? I'm not sure I buy that. Nor do I understand the "something more" requirement. If California's long arm statute is coextensive with the Due Process Clause, then what "more" than minimum contacts is needed to establish personal jurisdiction?
On the post: Mythbusters Crew Accidentally Fire Cannonball Through Suburban Neighborhood... Quickly Start Deleting Tweets Of The Evidence
Re: For all the "unscientific" complaints against Mythbusters
On the post: It's Official: RIAA Trying To Join Righthaven Lawsuit
Re: Re: Re: Re: Re: Re:
Yes, thank you. What I said applies only to subject matter jurisdiction. Personal jurisdiction works differently since the court generally won't consider it unless the defendant challenges it. And if the defendant doesn't challenge it early on, it's waived. Here, Hoehn at first reserved the right to challenge personal jurisdiction but then later waived that right, if I recall correctly.
On the post: It's Official: RIAA Trying To Join Righthaven Lawsuit
Re: Re: Re: Re:
My understanding is different, and I think is amply supported by the text I quoted above. You can have alternate bases in general, but not when it comes to jurisdiction. A court has a duty to determine up front and on its own whether it has subject matter jurisdiction, even if the parties don't raise the issue themselves. Once a court determines it does not (and let's assume there was leave to amend and all that), then the only proper move is to dismiss. The judge can't be wishy-washy when it comes to jurisdiction. A "federal court may not hypothesize subject-matter jurisdiction for the purpose of deciding the merits." Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999). That says it all. The court must decide either: (1) the court has subject matter jurisdiction, or (2) the court does not have subject matter jurisdiction. There is no "maybe I do and maybe I don't" as you suggest.
On the post: It's Official: RIAA Trying To Join Righthaven Lawsuit
Re: Re: Re: Re: Re: Re: Re:
It says: "JURISDICTION 8. This Court has original subject matter jurisdiction over this copyright infringement action pursuant to 28 U.S.C. 1331 and 28 U.S.C. 1338(a)."
Section 1331 provides: "Federal question. The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."
Since Righthaven is suing Hoehn for violating the Copyright Act, a "law . . . of the United States," i.e., a federal law, then the district court has subject matter jurisdiction.
The other statute listed, Section 1338(a), is just an alternate statute that gives the district court subject matter jurisdiction. It provides that: "The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks."
Either one of those statutes alone suffices to establish subject matter jurisdiction.
Standing, by comparison, comes out of Supreme Court jurisprudence. It's judge-made law. Put simply, it's based on the idea that you must have the proper parties before the court before the court has the power to hear the "case or controversy." Without having the proper parties, the court cannot have subject matter jurisdiction.
That's just a sketch. Hope it helps.
On the post: It's Official: RIAA Trying To Join Righthaven Lawsuit
Re: Re: Re: Re:
On the post: It's Official: RIAA Trying To Join Righthaven Lawsuit
Re: Re:
On the post: It's Official: RIAA Trying To Join Righthaven Lawsuit
Instead of politely and professionally consenting to this brief, Randazza staged a letter and got the anti-Righthaven and anti-RIAA mouthpieces at Techdirt and TorrentFreak to try and turn this into a negative PR thing for the RIAA. That is the definition of petulance in my book.
On the post: RIAA Really Planning To Join Righthaven Fight
Re: Re: Re: Re: Re: Not that I disagree with Randazza
I do. I remember that there's people like you who cannot stand anyone voicing an opinion you don't agree with.
On the post: RIAA Really Planning To Join Righthaven Fight
Re: Re:
You can certainly cook up some scenario where wholesale copying is fair use, but this cut-n-paste job by the defendant isn't one of them. Don't get me wrong. I would have no problem with this being fair use--in fact I think fair use rights should be broader. But as far as applying the law as it currently exists to these facts goes, the district court did not do a good job. I suspect the Ninth Circuit would reverse the fair use ruling if they were to actually reach it.
On the post: RIAA Really Planning To Join Righthaven Fight
Re: Re: Re: Re: Re: Not that I disagree with Randazza
On the post: RIAA Really Planning To Join Righthaven Fight
Re: Re: Re: Re: Re: Not that I disagree with Randazza
On the post: RIAA Really Planning To Join Righthaven Fight
Re: Re:
On the post: RIAA Really Planning To Join Righthaven Fight
Re: Re: Re:
Next >>