Project DOD Inc v Federici

Plaintiff, Project DoD, is a non-profit corporation organized under Maine law to provide hosting as an internet service provider. Defendant is a resident of Virginia who provides pediatric psychological treatment and services. Advocates for Children in Therapy (hereinafter “ACT”) is an educational and public advocacy organization dedicated to analysis and critique of the type of services provided by the defendant.

On August 30, 2008, Defendant purported to give notice to the plaintiff pursuant to 512(c)(3) of the DMCA, claiming that material critical of the defendant on ACT’s website, hosted by plaintiff, infringed on his copyrights. On September 1, 2008, Plaintiff disabled the ACT websites. On September 2, 2008, the plaintiff informed the defendant that his takedown notice did not comply with the requirements of the DMCA and that the ACT websites would be reinstated. Defendant responded with a more complete takedown notice for the ACT sites.

In turn, Plaintiff disabled portions of the applicable websites and forwarded the takedown notice to the ACT. ACT responded with a counter-notification to the defendant with notification that the material identified in his takedown notice would be replaced unless he gave notice to the plaintiff within 10 days that he had filed an action seeking a court order to restrain ACT from engaging in the allegedly infringing activity on the plaintiff's network, in accordance with the safe harbor provisions of the DMCA. Defendant failed to bring such an action and the plaintiff restored the allegedly infringing material on the websites.

Defendant and others then engaged in a course of harassing communications with the plaintiff demanding that it cease hosting ACT's websites and threatening to hold the plaintiff liable for its hosting of ACT's websites, in an effort to intimidate the plaintiff.

In a “reverse DMCA” case, the plaintiff web-hosting company sought relief under section 512(f) of the DMCA against the defendant copyright holder for alleged threats of copyright infringement. Defendant moved to dismissed pursuant to Fed.R.Civ.P. 12(b)(2) and 12(b)(6) alleging lack of personal jurisdiction in Maine.

Motion to dismiss granted. The court was unwilling to extend jurisdiction over the copyright holder that had no contacts with Maine because it did not want to set the precedent that when a web-host receives a takedown notice it would then be able to hale copyright holders into a distant court where the web-host resided.

To show specific personal jurisdiction the plaintiff must prove that: litigation arises directly out of, or relates to, defendant's activities in forum state; defendant's contacts constitute purposeful availment of privilege of conducting activities in forum state; and that the exercise of jurisdiction is reasonable in light of Gestalt factors.

I. Purposeful Availment
Plaintiff contended that the defendant's purported DMCA notice, together with the later letter from his lawyer, is sufficient to show purposeful availment. The court reasoned that the sending of a cease-and-desist letter pursuant to the DMCA is not sufficient alone to establish purposeful availment. The court further reasoned that the defendant’s actions were not “expressly aimed” at the forum state as required to establish specific personal jurisdiction. The plaintiff had only shown that a “notice required by the DMCA to be sent to the plaintiff, which happened to be in Maine, although the plaintiff's server is apparently located in California, and although the target of the notice, from all that appears, was ACT, which is not alleged to be located in Maine.”

II. Gestalt Factors
The Court reasoned that even if the plaintiff could show purposeful availment, the Gestalt factors did not weigh in their favor. The Gestalt factors include: (1) the extent of the defendant's purposeful interjection into the forum state's affairs; (2) the burden on the defendant of defending 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 plaintiff's interest in convenient and effective relief; and (7) the existence of an alternative forum. The court reasoned that the first factor weighed in defendant’s favor because there had been only minimal purposeful interjection into Maine’s affairs. The second weighs only slightly in favor of defendant because of modern means of travel. The court found the third factor to be neutral. The court found that the fourth facor weighed slightly in favor of dhte plaintiff because Maine, the plaintiff’s place of residence has an interest in providing a forum for adjudication of disputes involving a resident. The court found the fifth factor to be neutral because the dispute could be litigated in either Virginia or Maine. The sixth factor went for the plaintiff because the court reasoned the plaintiff had an interest in deciding this dispute in the district in which it resides. The final factor weighed against the plaintiff because Virginia offered an alternate forum. The court reasoned that the Gestalt factors also weighed against the exercise of specific personal jurisdiction.

Ultimately, the court was “concerned that a web host, which, like the plaintiff here, receives a takedown notice that the copyright holder is required to send to it under the DMCA, will, under the plaintiff's theory, be able to hale copyright holders into a distant court where the web host “resides”, even if the client against whom the notice is actually directed is located in a state closer to that where the copyright holder resides.”

The court, while fretting over subjecting copyright holders to personal jurisdiction upon the sending of notice pursuant to the DMCA, seemed to ignore the fact that the Defendant “engaged in a course of harassing communications with the plaintiff.”

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