Part I: Pavlovich v. Superior Court (or: why you may have to learn to love the California court system if you're posting on the Web)
Thursday, September 5, 2002 at 5:39PM I came up to San Francisco last night to be here for today's oral argument in Pavlovich case before the CA Supreme Court. At issue is whether "a defendant in Texas who posted DVD de-encryption software on an Internet web site [is] subject to suit in California based on allegations he knew or should have known that his conduct could harm industries with a strong presence in California." The industries in this case are those who make motion pictures, computers and consumer electronics, all represented by the DVDCCA (the real party in interest here). In the decision below, the California Court of Appeal held that jurisdiction in California is triggered if there are allegations of wrongdoing (here, the posting of the DeCSS code), and the defendant knew or should have known the act would injure "industries in California." The full text of the opinion under review is here on the EFF site. Many are concerned that the lower court's decision goes too far (e.g., consider this observation made as part of the jurisdictional analysis: "Instant access provided by the Internet is the functional equivalent of personal presence of the person posting the material on the Web at the place from which the posted material is accessed and appropriated. It is as if the poster is instantaneously present in different places at the same time, and simultaneously delivering his material at those different places. In a sense, therefore, the reach of the Internet is also the reach of the extension of the poster's presence"), and perhaps establishes California as the de facto jurisdiction -- at the plaintiff's option -- whenever he, she or it is involved in an industry "commonly known" to have a presence in the state.
I don't represent any of the parties in these proceedings, but am writing a long-ish article on Internet jurisdiction issues for a legal publication. (I'm also contributing some Pavlovich-oriented analysis to LLRX for its 9/15 edition). The publisher and I thought it would enhance the piece to include some discussion of how the argument went. So there I was in Tiburon this morning, up at dawn, headed into the City just to watch an argument. This turned out to be a liberating experience. Generally, when I am up at 5:00 a.m. for an argument, it's because I'm the one about to try to ably answer the court's inquiries. As I brushed my teeth I could well appreciate the last-minute mental gymnastics of the lawyers in the case (Allonn Levy, for Pavlovich; Gregory Coleman for DVDCCA), as they answered the hard questions for the umpteenth time in their heads. This is the California Supreme Court, baby. These jurists Have Also Been There and Are Still There.
Lately I've learned that when it is my turn on the hot seat, the kind of yoga I've practiced for several years has transformed the oral argument experience. The heart-hammering sensation in the chest does not happen. The hands don't jitter my notes (yes, notes; there is but one David Boies). The voice doesn't crack. Soft in the back of my head, my favorite instructor reminds me to take "long, slow, deep belly breaths." As fun as appellate arguments are to do (and they are enormous fun), it was a refreshing change of pace to know all that was required of me this morning was a profound appreciation of the tendrils of fog snaking the Golden Gate Bridge, the San Francisco skyline against a cobalt sky, Mozart's Horn Concerto #1, and The Circus that awaited at court.
[Come back tomorrow for an account of The Circus; I'm Done with a capital D for the day.]