[00:00:01] Speaker 01:
Case number 17-7033, Triple Uplimited Appellant versus Yoku Todu.

[00:00:08] Speaker 01:
Mr. Sandel for the appellant, Mr. Dreier for the appellee.

[00:00:13] Speaker 02:
Good morning.

[00:00:15] Speaker 00:
Good morning.

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Good morning and may it please the court.

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My name is Lawrence Sandel on behalf of Appellant Triple Uplimited, or TUL, and I plan to reserve three minutes of my time for rebuttal.

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As internet technologies continue to advance, questions regarding what types of electronic contacts with the forum confer personal jurisdiction become more and more complex.

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On one end of the spectrum, it's clear that merely operating a website that can be accessed in a forum is not purposeful of element.

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But on the other end, specifically engaging in electronic business transactions with forum residents, such as through an e-commerce website, is purposeful of element.

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In between, the law is far from settled, and that's where we are here today.

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So this case presents the court with the challenge of fitting a particular technological fact pattern, a specific iteration of internet broadcasting, geo-targeting, and geo-blocking technologies into this existing spectrum of internet personal jurisdiction jurisprudence.

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And this course is tasked with making the fact-specific determination of whether Yoku's electronic contacts with the United States are best characterized as voluntary and deliberate on one hand,

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or as fortuitous, random, attenuated, or merely the result of another party's unilateral activities on the other.

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So would you agree that a website host who determines upon receiving a request merely whether it is permissible

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to allow access in a particular country, that that is mere access as opposed to closer to the transactional phase.

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So to clarify your question, Your Honor, you're referring to a website that checks to see... I'm referring to your brief and the description of what UQ does

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and you're arguing that that should be enough to be affirmative.

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So I'm taking that and asking you, piecing it.

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Merely, I'm asking whether you agree that if you could merely determining whether it may permissibly allow access at a particular location, is that more than merely allowing access?

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if you could solely uh... died determined whether or not uh... determined access based on geographical area and determine whether broadcast based merely on whether or not

[00:03:03] Speaker 03:
That's my question.

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In that case, yes, we would say it is purposeful mailman.

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If Youku's website, which it does here, makes an election using as one of the factors, where is this broadcast going to if it considers that?

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So if that's your position, then why wouldn't that be true in all these other cases?

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I mean, there are not a lot of cases out there.

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But the courts have drawn a line between this sort of active business transactions

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and the type of what I'm going to call geographical inquiry.

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And yet, you want to take the position that the geographical inquiry itself is enough

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Yes, Your Honor.

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If the geographical inquiry is made, in all of these other cases, there was no geographical inquiry made.

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Whether or not the technology exists is another question.

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We're not asking for a mandatory geoblocking regime across the board.

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What we're specifically asking for here is in specific cases, like this case, where the geography is important to the business plan and decisions are made based on the geography,

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Knowing that a certain broadcast will go to the United States, as well as directing specific advertisements that are specifically focused on the United States, that is purposefully availing oneself to the United States.

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that i don't know the answer to.

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This is not one of those I'm posing because I didn't know the answer.

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Is any case law concerning broadcasting in comparable situations?

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That is to say, a radio station in Mexico just across the Rio Grande that broadcasts into the central United States and has advertisements for plastic statuettes for the, is that within your jurisdiction, personal jurisdiction?

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I vaguely recall that in the briefing for the district court, but I can't remember the case.

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I do note that during preparation for this appeal, I discovered another case that's actually making its way to this court that had dealt with this issue.

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It wasn't in the briefs.

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But that was Spansky Enterprises versus Telewizja Polska.

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And that is available at 222 F SUP 95.

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And that dealt with a slightly different facts, but a very similar geoblocking issue.

[00:05:27] Speaker 04:
Sorry.

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Is that F for third?

[00:05:30] Speaker 00:
F for third, yes.

[00:05:31] Speaker 00:
Okay, thank you.

[00:05:35] Speaker 03:
So as I understood the answer to my question, if the only thing that's happening upon receiving a request is to determine geographic location, and that would be in order to be sure you're not

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violating a copyright privilege.

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How can that be purposeful in availment?

[00:06:05] Speaker 00:
Well, Your Honor, it's more than just determining the geographical location.

[00:06:08] Speaker 03:
It's... No, my question was that's all that's being done.

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I mean if in the hypothetical that all that's being done is assessing a geographical location.

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Upon receiving a request.

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Upon receiving a request.

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And then determining that either you do or don't have permission.

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Then we believe that would be because deciding

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whether or not to broadcast based on that geographical location is making a decision.

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Do we purposeful avail ourselves of this forum?

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So I may not understand this, but what I'm trying to understand is the case, leading case we have is if the website's just there and I want to go on a website site, that's not enough.

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I agree, Your Honor.

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So arguably, the website owner has made a determination that, in my hypothetical, I should be able to access its website.

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And that's all it's done.

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Why isn't that closer to these cases about mere accessibility is not enough?

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Well, I feel like the determination that you made in your hypothetical.

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In order to not violate your copyright, your client's copyright.

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But I feel like that act of making a determination.

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To not violate the law.

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Well, it's not so much to not violate the law that you're making a determination of whether or not to broadcast.

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That's the determination that's being made.

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And when you consider as a primary factor, or the only factor in that, is where is this broadcast going to?

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At that point, you're purposefully availing yourself of the forum because you have determined that you want to broadcast there, or conversely, you've determined you're not purposefully availing yourself because you're saying, I'm not going to broadcast there.

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So when that decision is made, that is a deliberate and voluntary decision.

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It's not, you know, in the other cases that we can be described as more fortuitous, a user just goes on, and regardless of where they are, the broadcast may just automatically be set in every single case.

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And that's fortuitous.

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I'm thinking about following up on Judge Santel's question, these SEC-type cases we have, where, you know, I have a small FM station, and I can broadcast in one state, but not an adjacent state.

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And so when somebody tries to access my signal in one state, a determination has to be made as to whether or not that would be a permissible action on my part.

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In other words, I'm just trying to distinguish between a determination to comply with the law as distinct from an invitation to the requester

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to engage in some sort of transaction with me other than merely viewing what's on my website.

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Well, I think I do appreciate the distinction they're making, and it is going to be a fine one here, but we're not trying to change this law of personal jurisdiction.

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And I think a distinction can be made once there is that voluntary and deliberate decision being made.

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A radio station owner.

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What is that voluntary decision?

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The voluntary decision to do what?

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The voluntary decision is to broadcast

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content, whether whether copyrighted or not into a particular form.

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It's a direct and all it is.

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Then I have the same question, Judge, right?

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You're supposed to go.

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How do you get away from the cases that have said

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It wasn't enough in other cases.

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Well, this, Your Honor, this is a directed broadcast.

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We're not talking about the initial contact from the user saying, hey, can you please send me this video.

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What we're talking about here is YouCube saying, I know exactly where you are.

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You are in Washington, DC.

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I choose to send you this video in Washington, DC.

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I do send you this video in Washington, DC.

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And in fact, in addition to that, I will send you an advertisement that you have to watch before watching this video that is specifically directed

[00:10:39] Speaker 04:
To what extent, then, is not blocking essential to your case?

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really well resolved how much you were relying on them.

[00:10:52] Speaker 00:
Yes.

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Well, we weren't resolving on that.

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We would not suggest a mandatory geoblocking regime.

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Small websites around the world, we don't think that they should have to always check where somebody's located.

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We are not trying to hinder e-commerce and free speech around the world and up in the worldwide web.

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We're not asking the court to do that here today.

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What we are asking is, in these specific cases where a sophisticated entity has a very sophisticated system,

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that makes specific, deliberate decisions based on geographical location, that the decisions made by its automated system that it designs, it's responsible for those decisions.

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That's what we're asking.

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not super great on technology but tell me if I'm understanding how the system works or if I'm not please do correct me that unlike a radio broadcast it just goes out there and you can't control who happens to hear it or pick it up the way this works is and you've used the word broadcast this is not just accessing a website it's the live stream it's the streaming that you're concerned about and that's I take it a

[00:11:58] Speaker 02:
while it's probably done very fast with computers, an individualized decision would at a time when a customer requests or a prospective customer requests information and decision is made by

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to send, transmit information to that individual and through streaming they keep transmitting it in little, little electronic packs over a prolonged period of time.

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Is that right?

[00:12:24] Speaker 00:
That's correct, Your Honor.

[00:12:26] Speaker 02:
Okay.

[00:12:27] Speaker 02:
So that would be different than from a radio broadcast just getting picked up somewhere else.

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There's individualized decisions made each time.

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Yes.

[00:12:34] Speaker 00:
Yeah, millions and millions of these individualized decisions being made as to the United States over and over again.

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And obviously, many of them actually do decide to broadcast.

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And when each decision is made, it broadcasts to that specific individual's computer.

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And you could know it's exactly where that person is located by virtue of their IP address.

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Advertising package that they sell to advertisers is that we can tie it and target it to the individual They do tout the relationship with American advertisers and that's and that's how they're able to really garner that additional value from the US market and exploit that value because it doesn't really

[00:13:17] Speaker 00:
It doesn't help Youku if they're going to send an advertisement about the University of Phoenix to Beijing.

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They need to know that that is going to the United States.

[00:13:26] Speaker 00:
And that is the additional way where this – that personal availment evinces itself, because Youku is – So you are saying that broadcasting it into the United States is enough to create jurisdiction?

[00:13:40] Speaker 04:
No, not exactly, Your Honor.

[00:13:42] Speaker 04:
Exactly why aren't you saying that?

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Purposefully broadcasting to the United States.

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I don't think too many people accidentally send out signals.

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What I'm trying to draw the distinction is, Your Honor, between

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Yuku's website doesn't operates now, which we certainly contend has purposely held itself the United States, and if the website merely accepted everybody's broadcast requests, regardless of where they're requesting them from, and sent them the same ad, regardless of where that ad is from.

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Is there evidence that they don't do that?

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That they don't accept?

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broadcast based on, we don't accept transactions based on where people are.

[00:14:24] Speaker 00:
Yeah, in certain circumstances they have admitted that they will hinder broadcasts.

[00:14:29] Speaker 04:
Relying on their failure to block in order to create the jurisdiction when you make that distinction.

[00:14:35] Speaker 00:
I don't think so, Your Honor.

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At a certain point it does come closer.

[00:14:39] Speaker 00:
It sounds an awful lot like it.

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Well, a lot of it is a matter of perspective.

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In some ways, failure to block is really deciding to broadcast.

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That seems to be the case.

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And the fact here is that this decision is being made, and this decision is being made based largely in part on the geographic area of the requester.

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And you can know, based on that, you can know that a requester is in the United States, looks at the fact that the United States decides to send them a broadcast specifically to that person in the United States, and even adds advertisements directed to the United States that shows that they know that it's in the United States and that they're even exploiting the U.S.

[00:15:20] Speaker 00:
advertising market of the United States.

[00:15:24] Speaker 00:
So having to make that decision is a distinction.

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It's not the mere broadcast.

[00:15:29] Speaker 00:
It's not the mere accessibility.

[00:15:30] Speaker 00:
It's the fact that they make this decision knowing exactly where it's going.

[00:15:35] Speaker 02:
Well, they do it, I think you said, individualized.

[00:15:37] Speaker 00:
Individualized, yes.

[00:15:38] Speaker 02:
One at a time.

[00:15:40] Speaker 00:
In every single instance, they know where it's going.

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They make that decision whether or not to broadcast.

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And then they make the decision, well, what's the most appropriate advertisement for someone in this location?

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And perhaps with certain demographics that they know about.

[00:15:52] Speaker 02:
It sounds like somebody affiliated with Triple Up in the United States did this one time, but then there doesn't seem to be any allegation that there's this vague statement that it's less than 1%, and that could be one person or that could be a million people.

[00:16:10] Speaker 02:
But how do we know that anyone else is doing it other than the one that was done by a Triple Up person?

[00:16:16] Speaker 00:
Well, it's our belief that they do.

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And one thing that we are we are looking for here is discovery, which we will find out.

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And very quickly, we want to know if these were if these were the instances that we're attempting to use to make our prima facie case of personal jurisdiction.

[00:16:29] Speaker 00:
If those are the only instances in existence.

[00:16:32] Speaker 00:
Well, in our case, it's not going to last very long.

[00:16:34] Speaker 00:
But we need to get to that stage to see what's happening here.

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But we have established this is the way that their system works.

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And we're focused solely on this personal jurisdiction issue here.

[00:16:42] Speaker 02:
And my understanding is that Triple F acquired the right to these films from another company, Joint Entertainment, something or other, and that their exclusive right actually expires this month.

[00:16:59] Speaker 00:
I believe that's correct, Your Honor.

[00:17:02] Speaker 02:
In fact, the squirrel suicide one expires today.

[00:17:05] Speaker 02:
That's the only one I wanted to see.

[00:17:16] Speaker 02:
The other two movies expire November 30th.

[00:17:18] Speaker 02:
Is that, you don't know if that's been continued or anything?

[00:17:22] Speaker 00:
My understanding is actually that Yoku has at this point taken these specific videos down so they can no longer be requested by users, but we're still eligible for damages from this passing shipping contract.

[00:17:33] Speaker 02:
So all the claims for injunctive relief are moot?

[00:17:36] Speaker 00:
provided that these videos stay off their website and provided that this is not renewed, then I would agree with you, Your Honor.

[00:17:45] Speaker 02:
Well, to get injunctive relief, you have to show a risk of repetition.

[00:17:51] Speaker 02:
Since joint entertainment international apparently is the

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holder of whatever copyright there are.

[00:17:59] Speaker 02:
Whatever it was you agreed to with them to have this exclusive broadcast, does that mean you get the damages or do they?

[00:18:11] Speaker 00:
It's not entirely in the record.

[00:18:14] Speaker 00:
I'm not entirely sure what that answer is.

[00:18:18] Speaker 00:
I can check.

[00:18:19] Speaker 02:
Well, it would be kind of important, because if all your rights are expiring within today and the next couple of weeks, you can't have any injunctive relief.

[00:18:26] Speaker 02:
If you don't have a right to damages relief, you don't even have standing.

[00:18:30] Speaker 00:
Well, I believe the client has a right to pass damages from that period of time.

[00:18:34] Speaker 00:
OK.

[00:18:34] Speaker 00:
I can check with my co-host.

[00:18:35] Speaker 02:
And it would have to be the statutory damages, because you haven't alleged any actual injury, actual damages?

[00:18:41] Speaker 00:
I believe it is, it's only actual damages in this case.

[00:18:46] Speaker 02:
You asserted statutory damages and actual in the complaint, but I don't know what facts you've alleged that would suggest that there were actual damages from the one download.

[00:18:55] Speaker 00:
I believe that for the actual damages, a lot of it will come back and rely on what we discover through discovery.

[00:19:02] Speaker 00:
It's been a while since I reviewed the full record from the lower court.

[00:19:09] Speaker 00:
And to go a little beyond, I'd like to reserve a little basis for rebuttal.

[00:19:13] Speaker 00:
Thank you.

[00:19:13] Speaker 03:
All right.

[00:19:13] Speaker 03:
Thank you.

[00:19:17] Speaker 03:
All right.

[00:19:17] Speaker 03:
Counsel for Appellee.

[00:19:20] Speaker 01:
Good morning, Your Honors.

[00:19:21] Speaker 01:
Anthony Dreier, Board of Defending Appellee.

[00:19:24] Speaker 01:
Let me just address where we ended Judge Millett.

[00:19:28] Speaker 01:
The plaintiffs withdrew their request for statutory damages because they didn't have the requisite copyright registrations.

[00:19:34] Speaker 01:
As counsel noted, once the films were brought to Yoku's attention, they were taken down within 24 hours.

[00:19:40] Speaker 01:
They were actually taken down.

[00:19:41] Speaker 02:
Does the statute require registration to get the actual damages?

[00:19:44] Speaker 02:
Because you're not required to register to have copyright protection under U.S.

[00:19:48] Speaker 02:
law.

[00:19:48] Speaker 01:
It's a jurisdictional prerequisite, Your Honor.

[00:19:50] Speaker 01:
We briefed that below, and they withdrew that request for statutory damages.

[00:19:54] Speaker 01:
So it is actual damages that are only in the case.

[00:19:58] Speaker 01:
Let me try and put the geo-blocking arguments in a little bit of legal context, because I think it's important.

[00:20:03] Speaker 01:
As Judge Moss noted, there have only been generally two scenarios where courts have found that internet contexts were sufficient to establish specific jurisdiction.

[00:20:13] Speaker 01:
The first is where the website acts like a virtual storefront selling products

[00:20:18] Speaker 02:
into the form that's not this case that's not argued the other cat why isn't that the case well because we're not we're not selling products into the territory we're not selling these videos this is an online business it only exists online uh... all its relationships with customers are online uh... and what it's selling and you get paid in advertisers by commissioners some of your store that works by commission or something but

[00:20:45] Speaker 02:
You get paid by advertisers for selling streaming content, for selling them gazillions of little packets of electronic information that go directly to that individual upon that individual's request.

[00:20:57] Speaker 02:
Why isn't that like a storefront?

[00:20:59] Speaker 01:
Well, if the advertising were at issue, again, because this is a specific jurisdiction, if there was a claim about the advertising, that might be enough at least to satisfy the intent prong that the Supreme Court has required under Calder.

[00:21:10] Speaker 01:
But there's much more that needs to be acquired.

[00:21:11] Speaker 02:
I don't understand why.

[00:21:12] Speaker 02:
The advertising's a motivation.

[00:21:14] Speaker 02:
That's why they do it.

[00:21:14] Speaker 02:
If they're not making money, they're not going to do it.

[00:21:16] Speaker 02:
So that's their motive.

[00:21:18] Speaker 02:
And in fact, they say, we're this great, we are a great opportunity for your advertisers.

[00:21:23] Speaker 02:
You should want to use our website.

[00:21:24] Speaker 02:
We can help tailor and target your advertising to exactly the people that you want to have hear it.

[00:21:33] Speaker 02:
That's the benefit of working with

[00:21:36] Speaker 02:
and the way we do it is by using this information we're getting from folks when they come to get these videos.

[00:21:42] Speaker 02:
It seems to me the advertising is very intertwined.

[00:21:44] Speaker 01:
Well, but Your Honor, that's the case with every website that's commercial.

[00:21:47] Speaker 01:
I mean, virtually every website these days uses either pop-up ads or targeted ads or location-based ads.

[00:21:54] Speaker 01:
I'm not aware of any single case, and they certainly don't cite any, where mere advertising targeted to the forum in and of itself was a sufficient basis.

[00:22:02] Speaker 01:
It's not the mere advertising.

[00:22:04] Speaker 02:
It's the combination of

[00:22:07] Speaker 02:
You know, you're the modern day blockbuster video.

[00:22:09] Speaker 02:
The way people come in is they don't physically walk in your door.

[00:22:12] Speaker 02:
They come in electronically and say, I would like that video, and I'd like to watch it right now.

[00:22:18] Speaker 02:
And you hand it to them in little packets of electronic information over an hour or two to that individual targeted to them.

[00:22:26] Speaker 02:
And the way you get paid is this advertising that comes with it.

[00:22:29] Speaker 02:
That looks like a storefront exchange to me.

[00:22:31] Speaker 01:
But I think the problem is, ultimately, we have to look at the Calder test.

[00:22:34] Speaker 01:
That's the test that the Supreme Court established for tort claims and specific jurisdiction.

[00:22:40] Speaker 01:
And there's a four-factor test that they don't even try to meet, as Judge Moss recognized.

[00:22:43] Speaker 04:
And your position is this is specific jurisdiction if it involves that the transaction actually involved here is not one that brings it within the jurisdiction.

[00:22:53] Speaker 04:
The transaction of the advertising is for another day.

[00:22:56] Speaker 01:
That's correct, Your Honor.

[00:22:57] Speaker 01:
There were a dispute with University of Phoenix, which by the way operates internationally.

[00:23:01] Speaker 02:
No, no, no, this is the payment for this transaction.

[00:23:03] Speaker 02:
The advertising revenue is the payment for this customer's movie transaction.

[00:23:08] Speaker 02:
I don't know how you can, would they be doing this?

[00:23:11] Speaker 02:
Would they be marketing these videos to individuals?

[00:23:14] Speaker 02:
Would they offer this product if they weren't getting paid by advertisers?

[00:23:19] Speaker 01:
Well, they don't market the videos to anybody in the United States.

[00:23:22] Speaker 01:
There's no evidence in the record.

[00:23:23] Speaker 02:
I'm not talking about the United States.

[00:23:24] Speaker 02:
I'm saying they set up a business model here that says, we have all these videos.

[00:23:28] Speaker 02:
Come watch them.

[00:23:29] Speaker 02:
And the way we get paid

[00:23:32] Speaker 02:
aside from your subscription service, the way we get paid is when you come here, a bell rings, an advertisement goes out, and that's how we get our money.

[00:23:41] Speaker 02:
So we just have an extra step in the payment, like a consignment or something.

[00:23:45] Speaker 02:
But that's how we get paid.

[00:23:46] Speaker 01:
But in each of those types of cases, there's an impact in the targeted form.

[00:23:50] Speaker 01:
There's a dispute over that transaction.

[00:23:52] Speaker 01:
I didn't get the goods I paid for, or this wasn't what I requested.

[00:23:55] Speaker 01:
And so in those cases, there's a commercial dispute over the transaction.

[00:23:59] Speaker 01:
There's not a commercial dispute.

[00:24:00] Speaker 02:
So the test the Supreme Court uses arises in or relates to for personal jurisdiction.

[00:24:04] Speaker 02:
That's what they said in Bristol Myers, relates to.

[00:24:07] Speaker 02:
So it certainly does seem that it arises out of and it relates to that transaction and it seems kind of artificial to leave the advertising out of it since it's this packet.

[00:24:19] Speaker 02:
That's how they do their business.

[00:24:21] Speaker 02:
They put them together and they target, they say who are you, where are you from, and I'm gonna pick the advertisement that comes with your

[00:24:30] Speaker 02:
video.

[00:24:30] Speaker 01:
Well, it's packaged by a third party.

[00:24:32] Speaker 01:
So the advertising and the content have nothing in common.

[00:24:36] Speaker 01:
It's not like it's attached to the movie.

[00:24:37] Speaker 01:
It's provided by a third party.

[00:24:39] Speaker 02:
But beyond that, again, why I think... Wait, what's provided?

[00:24:42] Speaker 02:
The advertisement is created by a third party.

[00:24:44] Speaker 01:
The advertisement is created by a third party.

[00:24:45] Speaker 01:
It's not for our services.

[00:24:47] Speaker 01:
It's for third party services.

[00:24:48] Speaker 01:
And I agree, Your Honor.

[00:24:49] Speaker 01:
There were a dispute over the advertising.

[00:24:51] Speaker 01:
We were engaging in false advertising.

[00:24:53] Speaker ?:
No, no, no.

[00:24:53] Speaker 01:
or if Triple Up's content were part of our advertising, then the cause of action may actually arise out of the advertising.

[00:24:59] Speaker 01:
But as Judge Moss recognized, whatever the content of the ads are makes no impact on the copyright claim.

[00:25:06] Speaker 01:
But beyond that, and why I think this case

[00:25:08] Speaker 01:
is important.

[00:25:10] Speaker 01:
What they're arguing for, what they want this court to adopt, is effectively a Calder effects test without any effects.

[00:25:15] Speaker 01:
Because under Calder, the Supreme Court has said there has to be intentional conduct, it has to be directed towards the forum, it has to cause substantial injury in the forum, and that injury has to be reasonably foreseen.

[00:25:26] Speaker 01:
They don't even attempt to make an argument.

[00:25:28] Speaker 02:
Do you have any VIP clients in the United States?

[00:25:30] Speaker 01:
I don't know, Your Honor, but the VIP service is not part of this lawsuit.

[00:25:33] Speaker 01:
The VIP service is for premium content that we pay for.

[00:25:36] Speaker 01:
I get that.

[00:25:36] Speaker 02:
I'm just asking, because there was, I think when asked before, the answer was you didn't have them in DC.

[00:25:42] Speaker 01:
It's not in the record.

[00:25:44] Speaker 01:
Do you have them in the United States?

[00:25:45] Speaker 01:
Forgive me, Your Honor.

[00:25:46] Speaker 01:
It's not in the record, and I'm not aware.

[00:25:48] Speaker 01:
And again, because it wasn't a focus of this claim, the content that's at issue in this case is not VIP content.

[00:25:54] Speaker 01:
It's not paid premium content.

[00:25:55] Speaker 01:
What it is, and let me explain how GI blocking works.

[00:25:56] Speaker 02:
Do you have servers in the United States?

[00:25:58] Speaker 01:
I'm not aware of any servers in the United States one way or another.

[00:26:01] Speaker 01:
It's not in the record.

[00:26:02] Speaker 01:
But Judge Moss noted that even if there were servers in the United States, there's no evidence, legally or factually, that they're jurisdictionally significant.

[00:26:10] Speaker 01:
Again, there's not a single case I'm aware of.

[00:26:13] Speaker 02:
Well, there's not evidence either way.

[00:26:15] Speaker 01:
Right.

[00:26:15] Speaker 01:
But there's no cases.

[00:26:17] Speaker 01:
They didn't cite any to Judge Moss, that the mere presence of a server would be enough.

[00:26:21] Speaker 01:
At most, under Calder, that would show perhaps intent

[00:26:25] Speaker 01:
to affect the forum.

[00:26:26] Speaker 01:
I think they'd also have to show that we put the content on the servers, when in fact we believe this was content put on by third parties, and, under Calder, that there has to be a substantial impact in this jurisdiction.

[00:26:37] Speaker 01:
And they don't make that argument.

[00:26:38] Speaker 01:
They're based in Africa.

[00:26:40] Speaker 01:
There's no U.S.

[00:26:41] Speaker 01:
copyrights at issue here.

[00:26:42] Speaker 01:
They don't have business in the United States.

[00:26:44] Speaker 01:
So what they want this court to adopt is a novel jurisdiction theory

[00:26:48] Speaker 04:
of caulder like caulder effects without any effects in the united states uh... i want to briefly talk to some of the other time let me hear you briefly i don't know what the effect of this is do you know of any cases involving radio or television broadcasts that considered similar

[00:27:03] Speaker 01:
There's one case I'm thinking of where, and I think the test, and I'd be happy to brief this, Your Honor, and then I'll talk about geo-blocking and why this may be a little different.

[00:27:12] Speaker 01:
But to answer your question, I think if the contact outside of the territory is incidental, then that doesn't constitute purposeful availment.

[00:27:22] Speaker 01:
Let me just briefly address the way geo-blocking works.

[00:27:24] Speaker 04:
I think that means you don't know the case either.

[00:27:27] Speaker 01:
That's how that incidental transmission into a territory is not infringing.

[00:27:32] Speaker 01:
I believe that's right, Your Honor.

[00:27:33] Speaker 01:
So the way geoblocking works, to be clear, Yoku does geoblock a portion of the content on its website.

[00:27:39] Speaker 01:
And that is specifically licensed content where its agreement with that party requires it to broadcast or to stream the content only in certain territories.

[00:27:48] Speaker 01:
So if it licenses Harry Potter to show in China,

[00:27:52] Speaker 01:
It makes sure its license agreement restricts that from being shown anywhere else.

[00:27:56] Speaker 01:
So when that file is put on Youku's server, that file is marked to be shown only in China.

[00:28:01] Speaker 01:
There's data that's added to that file.

[00:28:04] Speaker 01:
All of the other content on Youku's website is not geoblocked.

[00:28:07] Speaker 01:
So content Youku posts that it creates, content that it licenses that is not restricted geographically,

[00:28:14] Speaker 01:
and content that users put on Yoku's website.

[00:28:17] Speaker 01:
None of that is geoblocks.

[00:28:18] Speaker 01:
So when anybody in the world tries to access that content, it is sent to wherever they are.

[00:28:23] Speaker 01:
And that's how every other internet site operates.

[00:28:25] Speaker 01:
That's how the site in GT operates.

[00:28:27] Speaker 01:
There is no true broadcast.

[00:28:29] Speaker 01:
An internet only sends information.

[00:28:31] Speaker 01:
An internet site only sends information when a party requests it.

[00:28:35] Speaker 01:
They ping the website with a URL address or with a link to say, I want this content.

[00:28:40] Speaker 01:
And the website operator sends that content to wherever the person is in the world, be that a home page, a video file, a photograph.

[00:28:48] Speaker 01:
That's how all websites work.

[00:28:50] Speaker 01:
That's how the website in GTE worked.

[00:28:52] Speaker 01:
If somebody in DC went to that website, Judge Santelli, I know that was your case, I know you're familiar with it, and said, I want the Yellow Book phone listing.

[00:28:59] Speaker 01:
That's where the webcasters sent it.

[00:29:00] Speaker 01:
That's exactly how the website operates here.

[00:29:02] Speaker 02:
Do you think streaming is the same as just accessing

[00:29:06] Speaker 02:
Information on a website.

[00:29:07] Speaker 02:
A streaming is an ongoing interconnection between two computer systems.

[00:29:14] Speaker 02:
Goes on for a while with repeated sending of packets of information over the wire for ether, whatever you want to call it.

[00:29:24] Speaker 01:
Forgive me for speaking over you, Judge Mallette.

[00:29:26] Speaker 01:
I think the only difference is that it takes a longer process because the files are longer.

[00:29:30] Speaker 01:
But GTE is content agnostic.

[00:29:32] Speaker 01:
Personal jurisdiction due process is content agnostic.

[00:29:35] Speaker 01:
What Calder requires?

[00:29:38] Speaker 02:
It's not going to be process agnostic.

[00:29:40] Speaker 02:
It's going to very much want to look at the nature of the relationship.

[00:29:43] Speaker 02:
Otherwise, if we just say if it's on a website it doesn't count, we're coming into a world where so much business is on computers and so many transactions are undertaken that way.

[00:29:55] Speaker 02:
And it can't be that none of those will ever count for personal jurisdiction.

[00:30:01] Speaker 01:
No, but I think you have to look at the test the Supreme Court gave us, which they don't want you to look at.

[00:30:05] Speaker 01:
And that's the Calder test.

[00:30:06] Speaker 01:
They don't want you to look at it because there is no effect in this country, substantial or otherwise.

[00:30:11] Speaker 01:
There's no foreseeability that there would be this effect for these works.

[00:30:14] Speaker 02:
Why is that?

[00:30:16] Speaker 02:
Do you know how many users there are in the US?

[00:30:24] Speaker 02:
I don't, Your Honor.

[00:30:25] Speaker 02:
We keep getting less than 1%, but less than 1%.

[00:30:27] Speaker 02:
I mean, 1%.

[00:30:29] Speaker 02:
would be 48 million people a year.

[00:30:33] Speaker 02:
So that's a huge amount of people.

[00:30:38] Speaker 02:
I know it sounds, I mean, your company's just so big that less than 1% is still pretty big.

[00:30:41] Speaker 01:
Well, I think we're dealing with apples and oranges.

[00:30:43] Speaker 01:
I think the statement was that there were something like 40 million visits, but that's not necessarily streams.

[00:30:50] Speaker 01:
My understanding is actually less than half of 1%.

[00:30:52] Speaker 01:
It's less than a quarter of a percent that visit.

[00:30:55] Speaker 01:
But that may go to general jurisdiction.

[00:30:56] Speaker 02:
But that's still a million a month, right?

[00:30:58] Speaker 02:
So that would be like, so 12 million a year.

[00:31:01] Speaker 01:
But I think that might go to something that's not at issue, which is general jurisdiction.

[00:31:04] Speaker 01:
That goes to whether we were continually and systematically engaging in activity here.

[00:31:09] Speaker 01:
This has to do with these three videos.

[00:31:10] Speaker 01:
The only evidence in the record that anybody in this country saw these three videos was plaintiff's counsel.

[00:31:16] Speaker 01:
And once they told us about it, even before the lawsuit was brought, they were gone within 24 hours.

[00:31:21] Speaker 02:
So the personal jurisdiction review has to be context with respect to these three specific videos or with respect to your video streaming service?

[00:31:29] Speaker 01:
Again, because the claims relate to these three videos, I think the courts have made clear that the causes of action have to rise out of the jurisdictional content.

[00:31:39] Speaker 01:
These three videos, not our business as a whole, that would be more for general jurisdiction.

[00:31:43] Speaker 01:
And I think the danger here is, if you adopt this theory, then any website that has geo-blocking for some of its content, and lots of websites have copyrighted content.

[00:31:52] Speaker 01:
The Washington Post has copyrighted articles, copyrighted photos, copyrighted video.

[00:31:57] Speaker 01:
If they geoblock some of that content, then they're going to be subject to jurisdiction wherever they don't geoblock other content.

[00:32:04] Speaker 01:
And that is not what I think would shred the due process protections.

[00:32:08] Speaker 01:
It would change purposeful availment into purposeful avoidance.

[00:32:12] Speaker 02:
So when would it be enough if we're not going to have a world where internet transactions are never enough?

[00:32:21] Speaker 02:
When would it be?

[00:32:21] Speaker 02:
Put aside subscription services.

[00:32:24] Speaker 02:
That's too easy.

[00:32:25] Speaker 01:
I think there might be a case where the defendant targeted the targeted jurisdiction, advertised, promoted its services in the targeted jurisdiction.

[00:32:33] Speaker 02:
They say that's this case.

[00:32:35] Speaker 02:
I mean, you may do it more in other places, but they say that you know you have

[00:32:42] Speaker 02:
a quarter of the less than 0.25%, which is still a pretty large number of folks coming.

[00:32:49] Speaker 02:
And when they come, you're matching up an advertisement that goes out with that video.

[00:32:55] Speaker 02:
And there's explanation on the record here about how that's really

[00:33:00] Speaker 01:
what's marketed by you who is its power to advertisers is ability to tailor to the individual i think again they have to target them for the specific content i think they have to know this specific content is going to the jurisdiction under calder and even if you accept that even if you can and we don't believe if you accept that the advertisements

[00:33:18] Speaker 01:
even though there's no evidence that we knew these particular works are going into the jurisdiction, there's still two other Calder factors that they can't meet and don't try to meet.

[00:33:26] Speaker 01:
And so the standard they want this court to adopt is, if you know the content is going in there, because somebody asked for it and you sent it there, that's enough.

[00:33:34] Speaker 01:
And we could ignore the effects portion of the Calder test, which quite frankly I think is the most important part of the test.

[00:33:39] Speaker 01:
Your conduct has to have a substantial impact in the targeted form.

[00:33:43] Speaker 01:
If it doesn't,

[00:33:45] Speaker 01:
then there shouldn't be specific jurisdiction.

[00:33:47] Speaker 01:
But Judge Monnet, that doesn't mean every case is now scot-free.

[00:33:50] Speaker 01:
If there are instances where a copyright owner is based in the United States or has a substantial portion of its business licensing the work in the United States, they may be able to satisfy the test.

[00:33:59] Speaker 01:
I'm not suggesting that every off-seas internet operator can never be held here.

[00:34:05] Speaker 01:
But under these facts, I don't think this is a close question.

[00:34:07] Speaker 01:
Judge Moss certainly didn't think this was a close question.

[00:34:10] Speaker 02:
What about standing?

[00:34:11] Speaker 02:
So, injunctive relief.

[00:34:14] Speaker 02:
They just haven't alleged standing for that, and the police seems to be moot for many reasons.

[00:34:20] Speaker 02:
If they withdrew their statutory damages, and I at least didn't see the complaint alleging any actual harm.

[00:34:29] Speaker 01:
Correct.

[00:34:30] Speaker 02:
So why do we have an argument about that?

[00:34:33] Speaker 01:
We had made an alternate basis below that they failed to state a claim for lack of standing, for lack of sufficient evidence that they had these copyright licenses in the first place.

[00:34:41] Speaker 01:
Typically, you attach the licenses to show that you have a right to sue.

[00:34:45] Speaker 01:
We had similar arguments with respect to their Lanham Act claims, which we think are preempted by the Daystar decision.

[00:34:50] Speaker 01:
Judge Moss didn't reach those because he said, I don't have to because there's not enough for specific jurisdiction in this case, which was their only jurisdictional theory.

[00:34:58] Speaker 01:
The only thing, and I know I'm late on time, but since counsel addressed discovery, I do want to say it is their burden to show that the discovery they seek would be jurisdictionally significant, that it would support jurisdiction.

[00:35:11] Speaker 01:
All they really did before Judge Moss was give him a laundry list of the requests they were seeking.

[00:35:16] Speaker 01:
They didn't cite any case law.

[00:35:17] Speaker 01:
They certainly didn't cite any case law that things like a server were sufficient to support jurisdiction.

[00:35:21] Speaker 01:
They still don't cite that case law.

[00:35:23] Speaker 01:
This isn't an abusive discretion standard.

[00:35:25] Speaker 01:
It's exceptionally deferential.

[00:35:27] Speaker 01:
And we don't think Judge Moss abused his discretion in denying discovery.

[00:35:33] Speaker 03:
Thank you.

[00:35:38] Speaker 00:
All right, thank you.

[00:35:39] Speaker 00:
Just to get back to your honor's question, I confirm with co-counsel that we will see damages for past actions.

[00:35:47] Speaker 00:
We're not sure if the license has been renewed at this time, but we will need a discovery for actual damages.

[00:35:52] Speaker 02:
Well, wait a minute.

[00:35:53] Speaker 02:
You allege the one download that you yourselves did, so you can't really be damaged by that.

[00:35:59] Speaker 02:
And that's all.

[00:36:00] Speaker 02:
Where do you allege any actual damages in your complaint?

[00:36:03] Speaker 00:
Well, I said we will need discovery.

[00:36:06] Speaker 02:
So you can file a complaint without showing any actual damages, any actual injury and try to get discovery?

[00:36:16] Speaker 02:
Don't you have to show actual injury to get into court to have discovery?

[00:36:19] Speaker 00:
Yeah, I mean, I believe there's actual injury from those three.

[00:36:22] Speaker 00:
I recognize it's not... That you, yourself, downloaded.

[00:36:25] Speaker 00:
I recognize it's not as harsh an injury as... Is it any injury?

[00:36:28] Speaker 02:
How's that any actual injury?

[00:36:29] Speaker 00:
Well, it's so infringing of the copyrights.

[00:36:32] Speaker 02:
It's infringing for you guys to look at your material that you can throw?

[00:36:34] Speaker 00:
Well, it's infringing for them to broadcast it.

[00:36:36] Speaker 02:
And it's a confirmation... But the only one that ever sees it is you?

[00:36:38] Speaker 02:
It's still an actual injury?

[00:36:44] Speaker 02:
I mean, okay.

[00:36:45] Speaker 00:
I understand.

[00:36:46] Speaker 00:
I understand.

[00:36:46] Speaker 00:
Right.

[00:36:47] Speaker 00:
I'd like to address, move on to, opposing counsel has spoken much about Calder.

[00:36:52] Speaker 00:
And we have never relied upon the effects test.

[00:36:56] Speaker 00:
The district court below actually pointed out that we did not rely on Calder.

[00:36:59] Speaker 00:
And the reason for that is this case involves direct actions by Yoku.

[00:37:03] Speaker 00:
It's not the effect that was unforeseeable.

[00:37:05] Speaker 00:
Indeed, Yoku actually foresaw this very effect.

[00:37:10] Speaker 00:
It knew that it may be subject to such copyright infringement lawsuits in the United States.

[00:37:14] Speaker 00:
It admitted that in its SEC disclosures.

[00:37:17] Speaker 00:
And much unlike TV or radio, where the next state may receive some sort of incidental signal or incidental broadcast, that was not purposely sent to that next state.

[00:37:28] Speaker 00:
In this case, every time it's streaming, it's specifically targeted to an individual.

[00:37:37] Speaker 00:
Additionally, I want to point out that third-party participation in the advertisement selection does not undermine the importance of the advertisements there.

[00:37:46] Speaker 00:
There's no question that YouCoup has knowledge and control of the videos and ads that are watched in the U.S.

[00:37:51] Speaker 00:
and has approved of such placement, at least, if not having control of it.

[00:37:56] Speaker 00:
And I refer your honors to the Heroes case, which is cited in the brief for that.

[00:38:04] Speaker 00:
I'd also like to, with reference to the alleged distinction between you who uploaded videos and user uploaded videos, actually, opposing counsel in their briefs conceded that the distinction is irrelevant to this case.

[00:38:21] Speaker 00:
But beyond that, there is a factual dispute in this issue.

[00:38:24] Speaker 02:
How could it be irrelevant if it was third parties that were doing it that they don't control that would seem to actually weigh in there?

[00:38:32] Speaker 02:
favor, whereas it was you who was doing it that would weigh in your favor.

[00:38:36] Speaker 00:
I'm not entirely sure why they called it irrelevant, but it was something that they had conceded in a footnote in one of their briefs, their reply brief.

[00:38:45] Speaker 00:
But I will also point out that there is a factual dispute on this matter, given the indicia that are involved in videos that are user-uploaded, having a username, and ones that are UQOO uploaded not having a username.

[00:38:58] Speaker 00:
And this factual discrepancy must be resolved in favor of TUL for this motion to dismiss.

[00:39:10] Speaker 00:
And finally, there are several points that Your Honor has asked counsel about regarding the facts of this case.

[00:39:19] Speaker 00:
And those are still open questions, which are now to discovery here.

[00:39:26] Speaker 00:
So in conclusion, appellant TUL requests this court reverse the lower court's dismissal and find specific jurisdiction under Rule 4K2 and the alternative TUL requests that the dismissal be vacated and TUL be permitted to engage in reasonable discovery.

[00:39:40] Speaker 00:
Thank you.

[00:39:40] Speaker 03:
We'll take the case under advisement.