Unpacking Pavlovich

If you've been playing along at home, it shouldn't come as any great surprise that I think the California Supreme Court reached the right decision in today's Pavlovich opinion (PDF). Now that I've made it through the 21-page majority opinion and 30-page dissent, a number of things seem worthy of mention, in no particular order.

The opinion provides a good example of why it is dangerous to try to gauge the outcome of an appeal based on the questions asked at oral argument (many of which, in this instance, you can review here, based on my attempt to blog them at the time).

The opinion leaves open a question that follows on from the reasoning of the Pennsylvania District Court, Western District, in the Zippo Manufacturing case. The California Supreme Court arrived at today's decision in part because the Web site in question "has no interactive features." The Zippo case adopted a sliding scale approach to the question of interactivity, with one end of the spectrum occupied by sites clearly transacting business over the Internet, and the other end occupied by "passive" sites that simply provide information. A "middle ground is occupied by interactive Web sites where a user can exchange information with the host computer." That "middle ground" probably does not include what widely is thought of as "e-commerce," which would tip toward the "highly interactive" end of the scale. It could, however, encompass things like discussion, chat and comment. Personally, I don't think the jurisdictional analysis in Pavlovich would have required a different outcome if the LiVid site had included, for example, a generic discussion board (although it's not difficult to envision scenarios where particular discussion activity could bear on an analysis of specific jurisdiction). Based on the reasoning here and in other cases, however, a court might conclude that discussion, chat and comment are relevant in assessing purposeful availment. (Interestingly, the site did include the ability to download DeCSS, but this does not seem to have slowed the Court down.)

Also important to the outcome was the fact that because DVD CCA did not begin administering licenses to CSS technology until after Pavlovich's alleged wrongdoing took place, Pavlovich "could not have known that his tortious conduct would harm DVD CCA in California when the misappropriated code was first posted." Presumably if the status of the plaintiff as rights-holder at the time of the alleged wrongful activity had been otherwise, the Court might well have exercised jurisdiction.

The opinion preserves a role for industry-wide harm in the personal jurisdiction analysis:

A defendant's knowledge that his tortious conduct may harm industries centered in California is undoubtedly relevant to any determination of personal jurisdiction and may support a finding of jurisdiction. We merely hold that this knowledge alone is insufficient to establish express aiming at the forum as required by the effects test.

Justice Baxter's dissent sounds an excellent policy point, that it may be unfair and/or not encompassed within "the basic principles of long-arm jurisdiction" to require an injured plaintiff "to pursue a multiplicity of individual suits against each defendant in his or her separate domicile." Somewhat less persuasive on these facts is the dissent's assertion that the burden on the defendant to litigate in a jurisdiction far removed from his domicile "does not otherwise suggest any unusual hardship."