California, Here I Come

The Ninth Circuit decision last Wednesday relating to Internet copying cracks a hole in Internet jurisdiction authority. The case of Brayton Purcell LLP v. Recordon & Recordon pits two law firms against one another over a claim of web page copying. Brayton Purcell, a medium-sized law firm located in the Bay Area, sued the tiny San Diego law firm Recordon & Recordon in federal court in the Bay Area over claimed wrongful copying of Brayton Purcell's web pages. Indeed, the Ninth Circuit points out that Recordon & Recordon appropriated whole sections verbatim of the Brayton Purcell website.

The important jurisdictional issue developed in this case relates to whether the tiny Recordon & Recordon firm should be required to litigate in the Bay Area. The firm argued that it does not practice in the Bay Area, but only in San Diego, and its website is completely passive. These two elements are important under established case authority relating to jurisdiction based on tortious conduct committed via the Internet. The general rule has existed for some time that passive websites do not target customers where ever the web pages are viewable on the Internet. This is so because passive sites do not represent purposefully directed activity authorizing the exercise of jurisdiction in foreign districts over non-residents.

The Ninth Circuit considered the circumstances of the defendant's web copying and determined that the act of copying was intentional. It further held that the copying of the Brayton Purcell web pages by a law firm competing in the California market for the same clients constitutes the targeting of harm at a resident of the forum -- Brayton Purcell -- where the action is pending. Whether or not Recordon & Recordon actually received any clients in the Bay Area as a result of the web copying is beside the point. Importantly, the firm aimed its conduct at a known resident of the Bay Area. The Ninth Circuit held that this circumstance is sufficient to justify jurisdiction over the non-resident defendant notwithstanding the otherwise passive nature of the defendant's website.

The Ninth Circuit distinguished its earlier holding in Schwarzenegger v. Fred Martin Motor Co., in which California jurisdiction was denied as to an Ohio business that used Arnold Schwarzenegger's image in local advertising appearing in Ohio. The Court reasoned that the Ohio print ads never appeared in California and, hence, there was no reason to believe that the ads were viewable by California residents. By contrast, Recordon & Recordon's wrongfully copied web pages were viewable by Brayton Purcell's potential clients in northern California.

What we assumed was settled law relating to jurisdiction over a passive website has changed, at least in the Ninth Circuit. Copying content from a website maintained by a Ninth Circuit business, and using the copied content on a website viewable in the plaintiff's market area so as to compete for customers, may very well permit a Ninth Circuit trial court to recognize jurisdiction over the non-resident firm in the Ninth Circuit-based forum.

If you copy a website without permission owned by a business in the Ninth Circuit, you may end up learning the words to "California, Here I Come."