DFSB Kollective Co. v. Bourne

897 F. Supp. 2d 871, 2012 WL 4051128, 2012 U.S. Dist. LEXIS 131079
CourtDistrict Court, N.D. California
DecidedSeptember 13, 2012
DocketNo. C 11-1046 PJH
StatusPublished
Cited by28 cases

This text of 897 F. Supp. 2d 871 (DFSB Kollective Co. v. Bourne) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DFSB Kollective Co. v. Bourne, 897 F. Supp. 2d 871, 2012 WL 4051128, 2012 U.S. Dist. LEXIS 131079 (N.D. Cal. 2012).

Opinion

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION AND DENYING MOTION FOR DEFAULT JUDGMENT

PHYLLIS J. HAMILTON, District Judge.

The court has reviewed Magistrate Judge Corley’s Report and Recommendation (“report”) re plaintiffs’ motion for default judgment, as well as plaintiffs’ objections to the report. In their objections, plaintiffs DFSB Kollective Co. Ltd., Nega Network, Jungle Entertainment, Woolim Entertainment, Aftermoon Music Entertainment, Inc., and Drug Records (collectively, “plaintiffs”) argue that defendant Yousuf Bourne (“defendant”) should be subject to personal jurisdiction in this court because his actions were “expressly aimed” at California. Judge Corley addressed this argument in the report, stating that “there is no indication that Defendant knew of a California user base or that he exploited that base,” and ultimately concluding that plaintiffs had not met their burden of making a prima facie showing of personal jurisdiction. Dkt. 48 at 13, 17. Importantly, the report explained that “[t]he Court is not holding that a foreign plaintiff can never demonstrate that a California court has specific personal jurisdiction of a foreign defendant for making illegal downloads available on the Internet,” but instead was merely holding that plaintiffs in this case had not adequately shown “that the Calder purposeful direction test is satisfied.” Id. at 17 (referring to Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)).

The Ninth Circuit addressed a similar personal jurisdiction issue in Mavrix v. Brand Technologies, 647 F.3d 1218 (9th Cir.2011). Mavrix involved allegations of copyright infringement brought in a California court against an Ohio-based celebrity gossip website. The Mavrix defendant argued that he had no contacts with California and thus was not subject to personal jurisdiction in California. The court disagreed, finding that the “most salient” fact was defendant’s “exploitation of the California market for its own commercial gain.” Id. at 1229. The court noted that “a substantial number of hits to [defendant’s] website came from California residents,” and further noted that the website displayed advertisements that were specifically targeted to California residents, which “indicates that [defendant] knows— either actually or constructively — about its California user base, and that it exploits that base for commercial gain by selling space on its website for advertisements.” Id. at 1230. This was enough to show that the Mavrix defendant “anticipated, desired, and achieved a substantial California viewer base,” making jurisdiction proper. Id.

If plaintiffs were able to show that defendant Bourne “either actually or constructively” knew about his California user base, Mavrix would control and personal jurisdiction would be proper in this case. But plaintiffs have not done so. Plaintiffs have not shown that a substantial number of hits to defendant’s websites came from California, nor have they shown that defendant’s websites displayed advertisements targeted to California residents, nor have they provided any other evidence that defendant “anticipated, desired, and achieved a substantial California viewer base.” The best that plaintiffs have done is claim that “California is one of the largest markets for Korean music” and that “defendant’s websites were frequently mentioned as a place to download music on the San Francisco-based Asian-American community site crunchyroll.com.” See Dkt. 47 at 5. This is not enough to make a prima facie showing that defendant expressly aimed his conduct at California.

[875]*875The Ninth Circuit recently confirmed its interpretation of the “express aiming” prong of the Colder test, holding that “the express aiming requirement is not satisfied where it is merely foreseeable that there will be an impact on individuals in the forum.” Fiore v. Walden, 688 F.3d 558, 577 (9th Cir.2011). Instead, plaintiffs must show that there was “individual targeting” of forum residents. Id.

Thus, the court OVERRULES plaintiffs’ objections to Judge Corley’s report and ADOPTS it in every respect. The court finds the report correct, well-reasoned, and thorough, and adopts it in every respect. Accordingly, plaintiffs’ motion for default judgment is DENIED for lack of personal jurisdiction.

The court is inclined to dismiss this case without prejudice in light of the denial of this motion, however before doing so, the court will afford plaintiffs an opportunity to request another disposition. Accordingly, plaintiffs shall file a status statement indicating how they would like to proceed with this case no later than September 24, 2012.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION TO DENY PLAINTIFFS’ MOTION FOR DEFAULT JUDGMENT (Dkt. No. 30)

JACQUELINE SCOTT CORLEY, United States Magistrate Judge.

This Order addresses whether Korean plaintiffs can pursue a lawsuit in California against an Australian defendant for contributing to the illegal downloading of Korean songs over the Internet. Now before the Court is Plaintiffs’ Motion for Default Judgment against Defendant Yousuf Bourne. (Dkt. No. 30.) Korean corporations DFSB Kollective Co. Ltd. (“DFSB”), Nega Network, Jungle Entertainment, Woolim Entertainment, Aftermoon Music Entertainment, Inc., and Drug Records (collectively “Plaintiffs”) allege Defendant, who is a resident of Australia, made Plaintiffs’ copyrighted music available for unauthorized download through his websites bww2.com and forums.bww2.com/index.

On June 22, 2012, 2012 WL 2376209, the Court issued a Tentative Report and Recommendation to deny Plaintiffs’ Motion for Default Judgment due to a failure to make a prima facie showing of personal jurisdiction over Defendant. (Dkt. No. 46.) The Court provided Plaintiffs with the opportunity to respond to the tentative ruling and has carefully considered the additional points and authorities submitted. (Dkt. No. 47.) The Court now issues a final Report and Recommendation to DENY Plaintiffs’ motion for default judgment for lack of personal jurisdiction.

BACKGROUND

A. Plaintiffs ’ Allegations

Plaintiffs are Korean companies with their principal places of business in Seoul, Korea. (Dkt. No. 1 ¶ 7-12.) They are the owners, distributors, and licensees of Korean pop music recordings to which they own exclusive rights under the United States Copyright Act. (Dkt. No. 1 ¶ 7-13.)

Defendant Yousuf Bourne (“Bourne”), an individual, is a resident of Australia. (Dkt. No. 1 ¶ 17.) He operated websites located at bww2.com ' and forums.bww2.com/index (“Websites”). He also operated accounts through numerous social networking and online video websites using a number of identities and aliases. These accounts include Facebook, hi5.com,1 DeviantArt,2 4Shared,3 and Files-[876]*876tube4 (“Accounts”). (Dkt. No. 30 at 18-19 ¶ 5.)

Defendant “is one of the biggest illegal uploaders (and free download link providers) of Korean music in the world.” (Dkt. No.

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897 F. Supp. 2d 871, 2012 WL 4051128, 2012 U.S. Dist. LEXIS 131079, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dfsb-kollective-co-v-bourne-cand-2012.