Daniel E. Wanat

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An action for an infringement of a copyright secured under the United States Copyright Act may raise issues of copyright ownership, a defendant's access to a plaintiff's work, and substantial similarities between a plaintiff's work and a defendant's work. When raised, the issues bear on the merits of a plaintiff's copyright claim against a defendant.

Suppose, however, that a copyright owner brought suit in the forum state against a nonresident defendant. The defendant's first defense may be based on the state's lack of personal jurisdiction. This defense implicates issues under the forum state's law and the Due Process Clause of the United States Constitution's Fifth Amendment.

Resolution of the due process issue begins within the United States Supreme Court opinion in International Shoe Co. v. Washington and continues with that case's progeny. In general, when deciding if jurisdiction exists within due process limits, the Supreme Court asks whether a defendant's act purposefully establishes minimum contacts within the forum state.

Among the considerations of the minimum contacts inquiry, indeed touchstones of this due process question, are the following: (1) whether the defendant acted with a purpose to avail himself or herself of the benefits and protections of the forum so that the defendant may expect to be haled into court there; (2) whether the defendant acted purposefully, expressly aiming at causing effects (in other words, directing them) within the forum state; and (3) whether the defendant's purposeful availment, or aimed acts, caused harmful effects within the forum state.

If the plaintiff is unable to show prima facie that the defendant's acts resulted in forum state purposeful availment, direction, or effects, the plaintiff's copyright infringement action will be dismissed for lack of personal jurisdiction.11 Thereafter, the plaintiff is left to find a constitutionally permissible forum state in which to bring the infringement suit.

This Article examines copyright infringement cases in which federal courts have applied the jurisdictional due process concepts of purposeful availment, purposeful direction, and purposeful effects. Part III contains a general analysis of the copyright infringement and purposeful availment, direction, and effects case law. In Parts IV and V, two areas within the existing case law are treated discreetly. The first is purposeful availment, direction, and effects jurisprudence of federal courts within the Ninth Circuit. The second is a passive versus interactive analysis that federal courts apply to resolve purposeful availment, direction, or effects issues in copyright infringement cases concerning the Internet.

Finally, in Part VI of the Article, the Author makes conclusions and comments on the state of the purposeful availment, direction, and effects requirements in copyright infringement litigation. Before exploring the relevant copyright infringement caselaw, Part II provides a primer of the purposeful availment, purposeful direction, and purposeful effects tests within due process limits by briefly visiting the decisions of the United States Supreme Court, beginning with International Shoe.