Briefly

I'm in the midst of some brief writing for the next couple of days, so now seemed like a good time to catch up on some additions to the Bag and Baggage blawg roll, and other bits of news.

Computer science professor Ed Felton from Princeton writes about the intersection of law and technology at Freedom To Tinker.

Marquette law student Nathan has the good sense to read Mr./Agent Harris.

Yale law student Nick Daum had the similar good sense to start blogging at/after Revenge Of The Blog.

More Yale rats James, Tim and the Kitchen Cabinet crew came my way during the conference.

(That's it on updates for now; more to come soon from the Blawg Ring.)

In other news, Michael Wasylik will be repeat panelizing in March at SXSW Interactive, and shares the link of the conference blog. The event looks superb, so no, it's not too early to start hyping.

In closing -- does anyone know whether Christy Turlington is a Federalist?

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."

Pavlovich Press Coverage

Thus far, Google News yields reports from c | net News.com, The Seattle Post-Intelligencer and The Sarasota Herald-Tribune.
[Later] And here's The Mercury News.
[Later] And here's The Recorder. [via Howard Bashman]

Still Reading...

Consistent with Halley's observation that weblogs, among other things, let you watch brains at work, I'm still reading the Pavlovich decision, but wanted to point out this was a 4-3 squeaker, with the majority authored by Justice Brown and concurred in by Justices Kennard, Werdegar and Moreno, and the dissent authored by Justice Baxter (remember the "rocket" question at oral argument?) and concurred in by Justices George and Chin. Here's a taste from the introduction of the majority opinion:

Not surprisingly, the so-called Internet revolution has spawned a host of new legal issues as courts have struggled to apply traditional legal frameworks to this new communication medium. Today, we join this struggle and consider the impact of the Internet on the determination of personal jurisdiction. In this case, a California court exercised personal jurisdiction over a defendant based on a posting on an Internet Web site. Under the particular facts of this case, we conclude the court's exercise of jurisdiction was improper.

Congratulations, Allonn and Ornah Levy

The California Supreme Court today reversed the Court of Appeal's Pavlovich decision (PDF) on Internet jurisdiction issues. More here once I've had the chance to digest the Supreme Court's lengthy opinion (PDF).