26 August 2000. A hearing on this matter is scheduled for Tuesday, August 29, at Santa Clara County Courthouse.
See Pavlovich Motion to Quash: http://cryptome.org/dvd-v-521-mpq.htm
And related files:
http://www.eff.org/pub/Intellectual_property/Video/DVDCCA_case/
http://eon.law.harvard.edu/openlaw/dvd/
http://cryptome.org/cryptout.htm#DVD-DeCSS
25 August 2000
Source: Hardcopy from Electronic Frontier Foundation.
[21 pages.]
JARED BOBROW (Bar No. 133712)
CHRISTOPHER J. COX (Bar No. 151650)
WEIL, GOTSHAL & MANGES LLP
Silicon Valley Office
2882 Sand Hill Road, Suite 280
Menlo Park, CA 94025-7022
Telephone: (650) 926-6200
Facsimile: (650) 854-3713
ROBERT G. SUGARMAN
JEFFREY L. KESSLER
EDWARD J. BURKE (Bar No. 103414)
JONATHAN S. SHAPIRO
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
NewYork,NY 10153
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
Attorneys for Plaintiff
DVD COPY CONTROL ASSOCIATION, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA |
||
| DVD COPY CONTROL ASSOCIATION, INC., a not-for-profit trade association, Plaintiff, v.
ANDREW THOMAS McLAUGHLIN, etc., et Defendants. _____________________________________ |
| | | | | | | | | | | | | |
Case No. CV 786804
MEMORANDUM OF POINTS AND
Date: August 29, 2000 |
Plaintiff DVD Copy Control Association, Inc. ("DVD CCA"), by and through its undersigned counsel, hereby responds to defendant Matthew Pavlovich's ("Pavlovich") Motion to Quash Service of Summons for Lack of Jurisdiction (the "Motion") as follows.
TABLE OF CONTENTS
INTRODUCTION 2
STATEMENT OF FACTS 3
ARGUMENT 5
A. Defendant Pavlovich Has Purposefully Availed Himself Of The Privileges Of This State 6B. Plaintiffs Claims Arise From the Defendants' Forum-Related Activity 9
C. The Exercise Of Jurisdiction Comports With Notions Of Fair Play And Substantial Justice 10
TABLE OF AUTHORITIES
FEDERAL CASES
Ballard v. Savage, 65 F.3d 1495 (9th Cir. 1995) 9
Calder v. Jones, 465 U.S. 783 (1984) 7
Core-Vent Corp. v. Nobel Indust., 11 F.3d 1482,1487-88 (9th Cir. 1993) 6,7,10
Hanson v. Denckla, 357 U.S. 235 (1958) 6
International Shoe Co. v. Washington, 326 U.S. 310 (1945) 5
MCA Records Inc. v. Charly Records LTD, 10 108 F.3d 338 (9th Cir. 1997) cert. denied 522 U.S. 822 7,11
McGee v. International Life Insurance Co., 3 5 5 U. S. 220 (195 7) 6
McRae's, Inc. v. Hussain, 2000 VTL 1036000 (S.D. Miss. 2000) 6
Nissan Motor Co., Ltd. v. Nissan Computer Corp., 14 89 F. Supp. 2d 1154,1160 (C.D. Ca. 2000) 6,7,10
Panavision Inter'l, L.P. v. Toeppen, 141 F.3d 1316, 1321, 1323 (9th Cir. 1998) 5,6,10
Panavision Intern'al L.P. v. Toeppen, 17 93 8 F. Supp. 616 (C.D. Cal 1996), aff'd, 141 F.3d 1316, 1321 (9th Cir. 1998) 5
Perry v. Righton.com, 90 F. Supp. 2d 1138 (D. Ore. 2000) 7
Telco Committee v. An Apple A Day, 977 F. Supp. 404 (E.D. Va. 1997) 6
Universal Studios, Inc. v. Reimerdes, 00 Civ. 277 21 (pending in
the U.S. District Court for the Southern District of New York) 4,10
STATE CASES
Fisher Governor Co. v. Superior Court, 53 Cal. 2d 222, 225-26 (1959) 3,10,11
Jewish Defense Organization, Inc. v. Superior Court, 72 Cal. App. 4th 1045 (1999) 6
Quattrone v. Superior Court, 44 Cal. App. 3d 296 (1975) 6
Schlussel v. Schlussel, 141 Cal. App. 3d 194 7 (citing Restatement Second of Conflict of Laws, § 37) 2
Pacco Industries, Inc. v. Van Den Berg, 5 Cal. App. 4th 34 (1992) 6
Vons Companies, Inc. v. Seabest Foods, Inc., 10 14 Cal. 4th 434 (1996)
cert. denied 522 U.S. 808, citing Burger King v. Rudzewicz 471
U.S. 462,473-74 (1985) 5
STATUTES
Cal. Code Civ. Proc. § 410.10 5
INTRODUCTION
Defendant Pavlovich is a leader in the so-called "open source" movement, which is dedicated to the proposition that material, copyrighted or not, should be made available over the Internet for free. Acting in concert with like-minded individuals throughout the world, Pavlovich engaged in purposeful, unlawful conduct directed toward substantial business enterprises in the State of California. He did so knowing that his actions would adversely affect these business enterprises and that his actions had the effect of circumventing trade secret protections established by and for the benefit of those business enterprises. Without denying any of these facts, Pavlovich argues that he has not purposefully availed himself of this forum and that he cannot therefore be subject to this Court's jurisdiction. This argument is untenable under the California long arm statue and related case law.
Where, as here, a defendant engages in intentional conduct, knowing that the brunt of that conduct will be felt in California, the defendant has purposefully availed himself of this forum and is therefore subject to this Court's jurisdiction. Despite this well-settled principle, Pavlovich seeks to escape the jurisdiction of this Court on the grounds that the computer terminals through which he carried out his wrongful actions were located in other states. Such circumstances do not deprive this Court of jurisdiction over defendants. As is often noted, "one who intentionally shoots a bullet into a state is as subject to the judicial jurisdiction of [that] state ... as if he had actually fired the bullet in the state." See, e.g., Schlussel v. Schlussel, 141 Cal.App.3d 194, 197 (citing Restatement Second of Conflict of Laws, § 37).
Defendants who misappropriate valuable trade secrets and inflict injury on major interests in this State cannot be immunized simply by conducting their illegal activities from afar over the Internet. If a state cannot redress injuries directed at that state through web site activity, then the power of the Internet will become a dangerous resource for intellectual property thieves. It is fair and it is the law that defendants who deliberately chose to injure interests in California be required to answer for their actions in California.
Further, as Pavlovich himself highlights, many of those with whom Pavlovich acted in concert were physically located in a variety of far-flung locales including Norway, England, New York, Connecticut and elsewhere. See Defendant's Points and Authorities in Support of the Motion ("Pavlovich PA") at p. 9. According to defendant Pavlovich's argument, therefore, plaintiff DVD CCA must pursue its claims simultaneously in literally dozens of jurisdictions throughout the nation and the world. This would waste judicial resources, needlessly inconvenience witnesses, and risk the promulgation of inconsistent results. Well established principles of law make clear that such situations should be avoided. As stated in Pavlovich's own memorandum of points and authorities, avoiding a "multiplicity of suits and conflicting adjudications" is one of the key factors favoring exercise of jurisdiction. Pavlovich PA, p. 9.1
____________________
1 Citing Fisher Governor Co. v. Superior Court, 53 Cal.2d 222 (1959).
Accordingly, as further detailed below, Pavlovich's Motion to Quash Service of Summons for Lack of Jurisdiction should be denied.
STATEMENT OF FACTS
DVD CCA is the sole authorized licensor of Content Scramble Systems ("CSS") technology, the encryption/decryption technology used to protect the copyrighted motion pictures contained on DVD discs. Defendant Pavlovich and the other defendants developed and/or posted on the Internet a computer program called DeCSS, which misappropriates DVD CCA's proprietary trade secrets and is designed to defeat the CSS encryption technology. Specifically, defendant Pavlovich, by his own admission, founded and operated a web site located at the URL: "livid.on.openprojects.net. "2 A key purpose of this web site was to aid in the development of an unlicensed, "open source" system for DVD playback and copying. LiVid is dedicated to the idea that all computer source code should be "open," even if that means stealing and disseminating protected intellectual property. To that end, Pavlovich posted the DeCSS program on this web site, thereby misappropriating DVD CCA's trade secrets.
____________________
2 See Deposition of Matthew Pavlovich, August 4, 2000 ("Pavlovich Aug. Depo") pp. 15-16, 40, cited portions attached as Exhibit A to the Declaration of Jonathan S. Shapiro ("Shapiro DecL"), filed herewith; see also Declaration of Matthew Pavlovich in Support of the Motion ("Pavlovich Declaration"), ¶ 9. In his moving papers, Pavlovich makes a point of stating that: "Pavlovich is alleged to have republished DeCSS on a web site located at www.livid.on.openprojects.net -- a non-existent site location. Pavlovich did have input on another site." Pavlovich PA, p.2. This "other site," Pavlovich admits in his declaration, has the identical address except that it lacks the "www" prefix. Pavlovich Decl., ¶ 9.
Defendant Pavlovich misappropriated DVD CCA's trade secrets knowing that such actions would adversely impact an array of substantial California business enterprises including the motion picture industry, the consumer electronics industry, and the computer industry. Such conduct has in fact injured the motion picture industry in California by making available material that allows copying of copyrighted motion pictures. Further, as alleged in the Complaint filed in this action, such conduct threatens the economic welfare of the more than 400 CSS licensees - companies that make the hardware and software enabling consumers to view digital images on DVDs. Of the 73 licensees which are located in California, 42 are located in Santa Clara County and an additional 17 are in other Bay Area locations. See Complaint, ¶ 53, attached as Exhibit D to the Shapiro Decl.
Further, defendant Pavlovich has willingly involved himself in Universal Studios, Inc. v. Reimerdes, 00 Civ. 227, a case that is now pending in the United States District Court for the Southern District of New York involving issues similar to those here. Pavlovich traveled from Texas to New York to testify as a witness for the defense in that case and was designated as a potential defense expert. Pavlovich is also the president of a technology start-up company (Pavlovich Aug. Depo., p. 8), a former computer engineering student, and a technician in the computer and telecommunications industry.3 He is one of dozens of defendants located throughout the world who have participated in the misappropriation of DVD CCA's intellectual property. Although plaintiffs investigation is ongoing, defendants have already been located in California, New Jersey, Wisconsin, New York, Pennsylvania, Georgia, Minnesota, South Carolina, Kansas, Texas, Connecticut, Massachusetts, Maryland, Oklahoma, Norway, Australia, Scotland, Germany, and the Netherlands. Shapiro Decl., 16.
____________________
3 See July 7, 2000 Deposition of Matthew Pavlovich ("Pavlovich July Depo.") p. 18, cited pages attached as Exhibit B to the Shapiro Decl.
ARGUMENT
California may exercise specific jurisdiction over nonresident defendants when "the state has 'a manifest interest in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors.' " Vons Companies, Inc. v. Seabest Foods, Inc., 14 Cal.4th 434, 447 (1996) cert. denied 522 U.S. 808, citing Burger King v. Rudzewicz 471 U.S. 462, 473-74 (1985).4 "The defendant need not ever have been physically present in the forum state for specific jurisdiction to apply." Panavision Intern'al L.P. v. Toeppen, 938 F.Supp 616, 620 (C.D. Cal 1996), aff'd 141 F.3d 1316, 1321 (9th Cir. 1998).
____________________
4 The limits of the California long-arm statute are co-extensive with the limits of due process. Cal. Code Civ. Proc. § 410.10. The Constitution requires a defendant to have minimum contacts with a state such that the assertion of jurisdiction does not violate "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington 326 U.S. 310, 316 (1945).
California courts apply a three-part test to determine whether specific jurisdiction exists in a particular instance. First, the defendant must have purposefully availed himself or herself of the forum. Second, the controversy must arise from the defendant's contacts with the forum. Third, the exercise of jurisdiction must comport with notions of "fair play and substantial justice." Id; see also Panavision Interl, L.P. v. Toeppen, 141 F.3d 1316, 1321 (9th Cir. 1998) (applying California law). As demonstrated below, the facts surrounding defendant Pavlovich's conduct unambiguously satisfy all three prongs of this test.
A. Defendant Pavlovich has Purposefully Availed Himself of the Privileges of This State
California courts have long held that the "purposeful availment" requirement is satisfied where a defendant's intentional conduct causes harmful effects within the state. See, e.g., Panavision, 141 F.3d at 1321, citing Calder v. Jones (1984) 465 U.S. 783); Quattrone v. Superior Court 44 Cal.App.3d 296 (1975); Hanson v. Denckla 357 U.S. 235 (1958); McGee v. International Life Ins. Co. 355 U.S. 220 (1957).5 Contrary to defendant Pavlovich's claim, neither the interactivity nor the commercial nature of a web site is relevant under this "effects test."6 See Nissan Motor Co., Ltd. v. Nissan Computer Corp., 89 F.Supp.2d 1154, 1159 (C.D. 10 Ca. 2000). Rather, under the effects test, a defendant's actions constitute 'purposeful availment' so long as those actions are (1) intentional actions (2) expressly aimed at the forum state (3) causing harm which is suffered -- and which the defendant knows or reasonably should have known is likely to be suffered -- in the forum state. Id; Panavision, 141 F.3d at 1321.
____________________
5 The effects test applicable in tort cases is properly applied in a cause of action arising under the Uniform Trade Secrets Act. Prior to the enactment of the California UTSA in 1984, a cause of 18 action for misappropriation of trade secrets was a common law tort. See Vacco Industries, Inc. v. Van Den Berg, 5 Cal.App.4th 34 (1992); see also Panavision, 141 F.3d at 1321 (finding a claim for trademark infringement "akin to a tort case" and applying the effects test where the defendant used the plaintiffs name in a web site domain name).6 Pavlovich cites Jewish Defense Organization, Inc. v. Superior Court, 72 Cal.App.4th 1045 (1999), for the proposition that the degree interactivity and the commercial nature of a web site are relevant under the effects test. This misstates the court's analysis. Rather, in Jewish Defense Organization, the court finds that the effects test has not been met because the defendant's actions did not create a "foreseeable risk of injury" in California. Only then does the court look to the interactivity and commercial nature of the web site in question as an alternative means of determining 'purposeful availment.' In contrast, as demonstrated below, defendant Pavlovich's conduct clearly did create a foreseeable risk of injury in California. His conduct therefore meets the "effects test," making any inquiry into the interactivity.or commercial nature of the web site in question both irrelevant and unnecessary. See also McRae's, Inc. v. Hussain, 2000 WL 1036000 (S.D. Miss. 2000) (holding passive internet cite subject to jurisdiction based on foreseeability of injury); Telco Comm. v. An Apple A Day, 977 F.Supp. 404 (E.D. Va. 1997) (same).
Knowledge that "the brunt of the harm would be suffered in California" has been deemed the "[m]ost significant" factor favoring jurisdiction under the effects test. Core-Vent Corp. v. Nobel Indust., 11 F.3d 1482, 1486 (9th Cir. 1993). In Panavision, the court found that the effects test was met where the defendant registered the plaintiffs motion picture camera trademarks as "domain names" on the Internet knowing that plaintiffs "principle place of business was in California" and that "the heart of the theatrical motion picture and television industry is located there." Id.
Similarly, in Calder v. Jones, 465 U.S. 783 (1984), the Supreme Court held that two Florida libel defendants were subject to the jurisdiction of the California courts under the effects test. The Court reasoned that the source of the material published and the location of the alleged injury were the same: California. Id. at 788-89. The Court held that the defendants "knew that the brunt of that injury would be felt by [the plaintiff] in the State" and that "[u]nder these circumstances, [the plaintiff] must 'reasonably anticipate being haled into court there' to answer for" their conduct. Id. at 788-89, citing World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297 (1978); see also Nissan, 89 F.Supp.2d 1154 (C.D. Ca. 2000)(holding a North Carolina defendant subject to California jurisdiction for trademark infringement over the Internet); MCA Records Inc. v. Charly Records LTD, 108 F.3d 338 (9th Cir. 1997) cert. denied 522 U.S. 822 (finding jurisdiction over foreign defendants because the effect of their trademark infringement was felt by California plaintiff).7
____________________
7 In comparison, where a passive Internet site is held insufficient to invoke specific jurisdiction it is because the defendant was unaware that it was engaging in potentially harmful conduct. See, e.g. Perry v. Righton.com, 90 F. Supp.2d 113 8, 1141 (D. Ore. 2000);
Pavlovich's own sworn testimony establishes that the effects test has clearly been satisfied here. By posting the trade secrets, Pavlovich participated in a direct attack on the plaintiff and on three of California's largest and most important industries -- the motion picture industry, the computer industry, and the consumer electronics industry. As a leader in the so-called "open source" movements, a computer engineering student, the president of a technology start-up company, and a technician in the computer and telecommunications industry, Pavlovich was certainly aware that by posting information on the Internet he was making that information available to a large and geographically scattered population of individuals and organizations. Indeed, that was his intention as the founder and project leader of the LiVid group, which seeks to create unlicensed DVD decryption applications. Pavlovich Aug. Depo., pp. 22-25. As the founder and project leader of that group, Pavlovich cannot now claim to have been naive or unsophisticated in his understanding of the impact his actions would have. In fact, Pavlovich has admitted that:
In short, Pavlovich both knew and should have known that the effect of his conduct would be to harm to California enterprises. By posting plaintiff s proprietary technology on the Internet, Pavlovich enabled countless Internet users to make pirated copies of DVD movies, thereby doing substantial harm to the motion picture industry which he knew was centered in California. Further, publication of DeCSS threatens the very existence of DVD CCA, which has its principle place of business in Morgan Hill, California and is the sole licensor of the intellectual property misappropriated by Pavlovich. Finally, Pavlovich's conduct also jeopardizes the economic viability of more than 400 CSS licensees in the California computer and consumer electronics industries. See Complaint, § 52-53.
Defendant Pavlovich's conduct, therefore, conclusively satisfies the requirements of "effects test." Accordingly, Pavlovich has purposefully availed himself of this forum.
B. Plaintiff's Claims Arise from the Defendants' Forum-Related Activity
Plaintiff s claims arise directly ftom Pavlovich's forum-related conduct. In California, courts use a "but-for" test to determine whether a particular claim arises out of forum-related activities. See, e.g., Ballard v. Savage, 65 F.3d 1495, 1500 (9th Cir. 1995). Thus, here, the question is: but for Pavlovich's forum-related conduct, would plaintiffs claims against Pavlovich have arisen? The answer is clearly no. If Pavlovich had not misappropriated DVD CCA's trade secrets, then plaintiffs claims for misappropriation against Pavlovich would not have arisen. Pavlovich's postings to the Internet are the direct cause of the injury suffered in California. Accordingly, plaintiffs claims do in fact arise from Pavlovich's forum-related activities.
C. The Exercise of Jurisdiction Comports with Notions of Fair Play and Substantial Justice
"An otherwise valid exercise of personal jurisdiction is presumed to be reasonable. Accordingly, once a court finds purposeful availment, it is the defendant's burden to present a compelling case that the exercise ofjurisdiction would be unreasonable." Nissan Motor Co., Ltd., 89 F.Supp.2d at 1160. Here, defendant Pavlovich comes nowhere near meeting this burden. Not only is it fair and just for this Court to exercise jurisdiction over Pavlovich, any other result would run contrary to accepted due process analysis.
In determining whether jurisdiction over a nonresident comports with notions of fair play and substantial justice under the due process clause, courts weigh seven factors:
(1) the extent of the defendant's purposeful intedection into the forum state's affairs;(2) the burden on the defendant of defending a suit in the forum;
(3) the extent of conflict with the sovereignty of the defendant's state;
(4) the forum state's interest in adjudicating the dispute;
(5) the most efficient judicial resolution of the controversy;
(6) the importance of the forum to the plaintiffs interest in convenient and effective relief; and
(7) the existence of an alternative forum.
Core-Vent Corp., 11 F.3d at 1487-88. No one factor is dispositive in itself. Id.
Defendant Pavlovich lists just five of these seven factors (numbers one, two, four, five, and seven)8 and discusses only three of them (numbers one five, and seven). All seven factors, however, operate in favor of exercising jurisdiction here. In particular, factors four through seven strongly compel this Court to exercise jurisdiction over Pavlovich.9
____________________
8 The 1959 case cited by Pavlovich (Fisher Governor Co. v. Superior Court, 53 Cal.2d 222), fails to list factor three: the importance of the forum to the plaintiffs interest in convenient and effective relief, and factor six: the extent of conflict with the sovereignty of the defendant's state. See Pavlovich PA, p. 9. As demonstrated below, both of these factors operate in favor exercising jurisdiction here.9 The other three factors also operate in favor of exercising jurisdiction here. With regard to factor one, the extent of Pavlovich's intrusion into California has been established above. See Section A, supra.
With regard to factor two, the burden on Pavlovich in defending this suit in the forum is minimal. Pavlovich is represented by the same counsel representing the California defendant in this action. If this suit were filed in another jurisdiction, Pavlovich would have to incur the additional expense of hiring counsel in that state. At most, Pavlovich would have to come to California for the trial itself. This would be true in the case of any nonresident defendant and therefore cannot operate as a reason to deny jurisdiction. Further, Pavlovich willingly traveled from Texas to New York to participate in Universal Studios, Inc. v. Reimerdes, 00 Civ. 227, a similar case now pending in the United States District Court for the Southern District of New York. Thus, Pavlovich's complaints about having to travel to California for this trial ring hollow. Finally, the burden on the defendant is no longer heavily weighed by courts in determining jurisdiction. See Panavision at 1323.
With regard to factor three, the is no conflict with the defendant's state, nor does Pavlovich claim so.
With regard to factor four, California has an immeasurable interest in adjudicating this dispute. As previously established, plaintiff DVD CCA is a trade association formed by three industries with a tremendous presence in the California economy -- the motion picture industry, the computer industry, and the consumer electronics industry. Defendant Pavlovich's actions strike at the core of these industries and their ability to operate in the emerging Internet economy. Thus, California maintains a "strong interest in providing an effective means of redress for its residents tortuously injured by commercial misappropriation." MCA Records, 108 F.3d at 338.
With regard to factor five, the efficient resolution of this controversy clearly requires that all defendants be tried in one jurisdiction. In fact, the one case cited by Pavlovich on this point highlights "the avoidance of a multiplicity of suits and conflicting adjudications" as a major factor to be considered when deciding whether to exercise jurisdiction. Fisher Governor Co., 53 Cal.2d at 225-26. Yet if jurisdiction over Pavlovich is not upheld, DVD CCA will be forced to sue the defendants in this case in the dozens ofjurisdictions; in which they reside. Nothing could be less efficient. The underlying facts and legal issues surrounding each defendant are virtually identical to each other -- they all posted the trade secrets on their web sites. Arguing and re-arguing these facts and legal issues in many different jurisdictions ensures the waste of valuable judicial resources and risks the propagation of conflicting verdicts and court rulings. California, as plaintiff s primary place of business and as the site of the greatest injury, is undeniably the jurisdiction in which this case should be tried.
For this same reason, factor six -- the plaintiffs interest in convenient and effective relief -- demands that this case be heard in one jurisdiction: California. The expense and inconvenience of pursuing identical cases in a multiplicity of jurisdictions would be an extraordinary burden for DVD CCA. Further, the possibility of conflicting adjudications risks rendering any relief plaintiff does obtain ineffective.
With regard to factor seven, there is no alternative forum in which plaintiff's claims can be as effectively pursued. It is California which has the greatest interest in the outcome of the litigation and California where the brunt injury has occurred. Although certain defendants might be subject to suit in other states, California is uniquely appropriate as a site to pursue claims against all the defendants.
WHEREFORE plaintiff DVD CCA respectfully requests that Pavlovich's Motion to Quash Service of Summons for Lack of Jurisdiction be denied.
Dated: August 18, 2000
JARED BOBROW
CHRISTOPHER J. COX
WEIL, GOTSHAL & MANGES LLP
Silicon Valley Office
2882 Sand Hill Road, Suite 280
Menlo Park, CA 94025-7022
Telephone: (650) 926-6200ROBERT G. SUGARMAN
JEFFREY L. KESSLER
EDWARD J. BURKE
JONATHAN S. SHAPIRO
GEOFFREY D. BERMAN
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
NewYork, NY 10153
Telephone:(212) 310-8000
By: [signature]
Christopher J. Cox (Bar No. 151650)
Attorneys for Plaintiff
DVD COPY CONTROL
ASSOCIATION, INC.
PROOF OF SERVICE
I, Jean Wirdzek, declare:
I am over the age of 18 years, am not a party to this action, and am employed in the County of San Mateo. My place of employment and business address is Weil, Gotshal & Manges LLP, 2882 Sand Hill Road, Suite 280, Menlo Park, California 94025.
On August 18, 2000, I caused to be served the attached MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF JURISDICTION on the following individuals and entities, as addressed below, by the means indicated below:
_____ BY MAIL. I caused the above-identified documents(s) to be deposited for collection at Weil, Gotshal & Manges LLP following the regular practice for collection and processing of correspondence for mailing with the United States Postal Service. In the ordinary course of business, correspondence is deposited with the United States Postal Service on this day.
_____ BY HAND DELIVERY. I caused the above-identified document(s) to be delivered by hand to the party(ies) listed below at the address(es) shown.
_____ BY FEDERAL EXPRESS. I caused the above-identified document(s) to be placed in a sealed Federal Express envelope(s) with delivery fees fully prepaid, for delivery to addressee(s), as indicated below on the next business day.
_____ BY FACSIMILE. I caused the above-identified document(s) to be sent by facsimile transmission to the party(ies) listed below at the facsimile number(s) shown.
Thomas E. Moore, Esq.
Tomlinson Zisko Morosoli & Maser LLP
200 Page Mill Road, Second Floor
Palo Alto, CA 94306
Robin D. Gross, Esq.
Electronic Frontier Foundation
1550 Bryant Street, Suite 725
San Francisco, CA 94103
Allonn E. Levy, Esq.
Huber-Samuelson
210 No. Fourth Street, Suite 400
San Jose, CA 95112
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed in Menlo Park, California on August 18, 2000.
[Signature]
Jean Wirdzek
JARED BOBROW (Bar No. 133712)
CHRISTOPHER J. COX (Bar No. 151650)
WEIL, GOTSHAL & MANGES LLP
Silicon Valley Office
2882 Sand Hill Road, Suite 280
Menlo Park, CA 94025-7022
Telephone: (650) 926-6200
Facsimile: (650) 854-3713
ROBERT G. SUGARMAN
JEFFREY L. KESSLER
EDWARD J. BURKE (Bar No. 103414)
JONATHAN S. SHAPIRO
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
NewYork,NY 10153
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
Attorneys for Plaintiff
DVD COPY CONTROL ASSOCIATION, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA |
||
| DVD COPY CONTROL ASSOCIATION, INC., a not-for-profit trade association, Plaintiff, v.
ANDREW THOMAS McLAUGHLIN, etc., et Defendants. _____________________________________ |
| | | | | | | | | | | | | |
Case No. CV 786804
DECLARATION OF JONATHAN S.
Date: August 29, 2000 |
I, Jonathan S. Shapiro, declare:
1. I am an attorney at Weil Gotshal & Manges, LLP, duly admitted to practice in the State of New York and have been granted permission to practice in California pro hac vice in this matter. I represent plaintiff DVD Copy Control Association, Inc. ("DVD CCA") in this matter and I submit this affidavit in opposition to defendant Matthew Pavlovich's ("Pavlovich") Motion to Quash Service of Summons for Lack of Jurisdiction (the "Motion").
2. On August 4, 2000, I took Pavlovich's deposition in Dallas, Texas (the "August 4th Depo."). DVD CCA's Memorandum of Points and Authorities in Opposition to Pavlovich's Motion ("DVD CCA's Memorandum in Opposition") cites to certain pages of the August 4th Depo. transcript. True and correct copies of those pages are attached hereto as Exhibit A.
3. On July 7, 2000, Carla Miller of the law firm Proskauer Rose, LLP, took Pavlovich's deposition (the "July 7th Depo.") in connection with Universal City Studios, Inc. v. Reimerdes, Civil Action No. 00 Civ. 277, a case now pending in the United States District Court for the Southern District of New York. DVD CCA's Memorandum in Opposition cites to certain pages of the July 7th Depo. transcript. True and correct copies of those pages are attached hereto as Exhibit B.
4. True and correct copies of certain postings made by Pavlovich to an internet web site know as the "LiVid group" and located at the URL "livid.on.openpojects.net" are attached hereto as Exhibit C.
5. A true and correct copy of the Complaint in this action is attached hereto as Exhibit D.
6. Although plaintiffs investigation into the matters underlying the Complaint in this action is ongoing. At this time, defendants have been located in California, New Jersey, Wisconsin, New York, Pennsylvania, Georgia, Minnesota, South Carolina, Kansas, Texas, Connecticut, Massachusetts, Maryland, Oklahoma, Norway, Australia, Scotland, Germany, and the Netherlands.
Dated: August 17, 2000
WEIL, GOTSHAL & MANGES LLPBy: [Signature]
Jonathan S. Shapiro
Attorneys for Plaintiff
DVD COPY CONTROL ASSOCIATION, INC.
Exhibit A [13 pages; not provided here.]
MATHEW PAVLOVICH 8/4/00
DVID COPY CONTROL v. ANDREW THOMAS MCLAUGHLIN
Page 1 to Page 98
CONDENSED TRANSCRIPT AND CONCORDANCE
PREPARED BY:
JANIS ROGERS & ASSOCIATES
1545 W. Mockingbird Lane
Suite 1032
Dallas, TX 75235
Phone: 214-631-2655
FAX: 214-631-2690
Exhibit B [3 pages; not provided here.]
MATT PAVLOVICH - JULY 7, 2000
UNIVERSAL CITY STUDIOS, INC. V. SHAWN C. REIMERDES
Page 1 to Page 215
CONDENSED TRANSCRIPT AND CONCORDANCE
PREPARED BY: DICKMAN DAVENPORT, INC.
DICKMAN DAVENPORT, INC.
3000 Carlisle Street, Suite 113
Dallas,Texas 75204
800-445-9548
Phone: 214-855-5100
FAX: 214-855-5181
Exhibit C [3 pages; not provided here.]
Three e-mails.
Transcription and HTML by Cryptome.