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A panel of judges for California’s 6th District Court of Appeal remained skeptical Thursday that a former Indiana college student accused of posting proprietary code for DVD encryption should be dismissed from a trade secrets suit in California. The panel, which initially denied review on the jurisdiction issue and was later ordered by the California Supreme Court to explain itself, made clear it felt it had gotten it right the first time, asking if the motion picture industry couldn’t sue defendant Matthew Pavlovich in California, then where? Pavlovich is one of 21 named defendants and 500 John Does sued by the motion picture industry in Santa Clara County, Calif., Superior Court for posting computer code that unscrambles the encryption system built into DVD. A similar suit has been filed in New York claiming copyright infringement by the individuals who posted the encryption software. Pavlovich, then a student at Purdue University in Indiana, was part of a loose association of software developers and computer programmers who through a Web site worked to improve the Linux operating system by developing video playback features. Pavlovich, who is being represented by the San Francisco-based Electronic Frontier Foundation, has tried to be dismissed from the case, contending that he had no direct contact with California. Both the trial court and the 6th District initially denied the motion. The plaintiffs have argued California has jurisdiction because the acts of plaintiffs affect the motion picture and technology industries in California. The trade secrets case has captured attention because it raises the question of how to determine jurisdiction in the Internet age. Thursday, Pavlovich’s legal team, including foundation attorney Robin Gross and Allonn Levy of HS Law Group, argued that making their client, who now lives in Texas, stand trial in California violates due process. Levy argued that the motion picture industry failed to meet “express aiming” requirements set out by the U.S. Supreme Court. Levy said to meet “express aiming” standards, his client would have had to “purposefully planned to steal or extort through tortious conduct.” “The focus of the analysis has to be on the defendant, not the plaintiff,” Levy said. “If we are talking about a negligent act, there is not jurisdiction under” the test set up by the Supreme Court in Calder v. Jones, 465 U.S. 783 (1984). The justices weren’t buying it. “You say the focus is on the defendant. That means theoretically you have to chase him around the country,” said Justice Eugene Premo. “He could take his laptop computer on a plane and be anywhere in an hour.” The panel fired off more questions when Levy suggested that Texas or Indiana would be a more appropriate jurisdiction. “Why would Indiana be good, or Texas?” Premo quizzed. “Let’s assume he moved to New York next week. Who would have jurisdiction?” “The alternate forum you offer this court doesn’t seem very reasonable,” said Justice Patricia Bamattre-Manoukian. Throughout the argument, justices were clearly apprehensive about delving into the complex technology that was used by Pavlovich in the encryption process. They said the technical nature of the case made answering the jurisdiction question more difficult. “You could wind up trying the whole case,” Premo said. At one point, Justice Manoukin asked if there were any parallel federal or out-of-state cases addressing jurisdiction on the Internet. Attorneys answered no. Robert Sugarman, who represented the motion picture industry Thursday, made his comments brief. “There is no other available forum for an efficient resolution of this case,” said Sugarman, a partner with Weil, Gotshal & Manges in New York. “If California is not the place of jurisdiction, there is no place to resolve the case.”

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