The 9th U.S. Circuit Court of Appeals came down on the side of Novato, Calif., personal injury firm Brayton Purcell in an Internet copyright infringement case Wednesday.
The 50-lawyer personal injury and asbestos firm had sued two-lawyer San Diego-based Recordon & Recordon for allegedly plagiarizing Web content describing its elder abuse practice. Brayton Purcell copyrighted its Web site in October 2002.
On Wednesday, a split 9th Circuit panel upheld the lower court ruling that had denied Recordon's motion to dismiss.
Judges Dorothy Nelson and Mary Schroeder said Brayton Purcell had met the key part of a three-pronged test, allowing it to sue in the Northern District: It had showed Recordon had "expressly aimed" its conduct there by targeting a firm obviously located in Northern California.
Dissenting Judge Stephen Reinhardt said their interpretation muddies up "the simple and easily applied rule" on personal jurisdiction that the 9th Circuit had established in Schwarzenegger v. Fred Martin Motor Co. , 374 F.3d 797 and Pebble Beach Co. v. Caddy , 453 F.3d 1151.
"Although the stakes of the particular dispute between Brayton Purcell and Recordon & Recordon are minor, the consequences of the majority's opinion will be major," Reinhardt wrote. "Under the majority's opinion, every website operator faces the potential that he will be hailed into far-away courts based upon allegations of intellectual property infringement, if he happens to know where the alleged owner of the property rights resides."
Recordon & Recordon, a personal injury and family law firm with clients in Southern California, had hired Web design company Apptomix Inc. in 2004 to create an elder law section on its Web site. Brayton Purcell discovered it using Copyscape, a tool that combs the Internet for unauthorized use of copyrighted materials. It then sued for copyright infringement, and the two sides eventually agreed to binding arbitration.
In May 2006, the arbitrator, M. John Carson, found the vendor and its president two-thirds liable, and Recordon & Recordon one-third responsible. He ordered (.pdf) the Recordon firm to pay Brayton Purcell more than $24,000 in statutory damages and nearly $37,000 in fees and costs. Apptomix was to fork over nearly $49,000 in statutory damages and nearly $74,000 in fees and costs.
The Recordon firm then appealed the district court's denial of its motion to dismiss for improper venue.
Lloyd "Butch" LeRoy, the partner heading up Brayton's appellate practice, who managed the appeal portion of the case, said Wednesday that he found the "blatant nature" of the copyright infringement unusual. "It was essentially our Web site pages on elder abuse just block and copied with the name of the law firm changed," he said Wednesday. He said he wasn't aware of something similar happening to the firm in the past and added that there was no way to tell whether the firm lost any business because of the copycat presentation.
Stephen Recordon, name partner at Recordon & Recordon, said had he known the vendor had stolen the content, he would never have launched the site. "We had no way of knowing," Recordon said.
He said he asked the company to take it down as soon as he learned about the lawsuit.
Recordon said he'd never heard of Brayton Purcell before the case. He added that Apptomix offered to build the site for a good price, about $1,000, claiming it would use the work as an example to attract its own new clients. Recordon expected a bare-bones site that he'd have to do some work on himself. When the vice president he'd been dealing with showed him the graphics and content, however, he said, he was impressed. He later learned the company had fired the vice president for "dishonesty," Recordon said.
"Years of litigation, thousands and thousands of dollars, and all because you hire the wrong person," Recordon summed it up. "Getting into elder abuse was something that I had wanted to do, but since that happened, I didn't get one case."