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If Matthew Pavlovich is going to be sued, it won’t happen in California. On Monday, the California Supreme Court ruled 4-3 that Pavlovich, a former Purdue University student now living in Texas, can’t be forced to answer here for posting computer code on the Web that unscrambles DVD encryption technology. “There is no evidence in the record suggesting that the site targeted California,” Justice Janice Rogers Brown wrote for the majority. “Indeed, there is no evidence that any California resident ever visited, much less downloaded” the source code from Pavlovich’s Web site. However, while shooting down a suit in California, Brown said there’s no reason that the DVD Copy Control Association Inc., which had sued Pavlovich, couldn’t seek recourse in other states, such as Indiana or Texas. “Our decision today does not foreclose it from doing so,” she wrote. “Pavlovich may still face the music — just not in California.” In a dissent, Justice Marvin Baxter, who was joined by Chief Justice Ronald George and Justice Ming Chin, said that the ruling leaves California-centered industries, which are targeted on the Internet, with no recourse but to file “a multiplicity of individual suits” in different states. “Nothing in the basic principles of long-arm jurisdiction compels such an illogical and unfair outcome,” Baxter wrote. Pavlovich, the president of Media Driver, a technology consulting company in Texas, had been sued for posting on his LiViD video project Web site a source code called DeCSS that would let users unscramble the Content Scrambling Code, a system used to encrypt and protect copyrighted motion pictures on DVDs. Pavlovich, who was in college in Indiana at the time of the postings, had argued that California’s long-arm statute didn’t apply to him because he posted the information passively, hadn’t had substantial contact with California and did not expressly aim to harm the state’s computer and movie industries. Pavlovich’s efforts to get the case thrown out were rejected by Santa Clara, Calif., County Superior Court Judge William Elfving and San Jose, Calif.’s 6th District Court of Appeal. But the California Supreme Court sided with him, ignoring arguments by industry leaders that Pavlovich’s actions threatened chaos. “DVD CCA’s interpretation would subject any defendant who commits an intentional tort affecting the motion picture, computer or consumer electronics industries to jurisdiction in California even if the plaintiff was not a California resident,” Justice Brown wrote. “Under this logic, plaintiffs connected to the auto industry could sue any defendant in Michigan, plaintiffs connected to the financial industry could sue any defendant in New York and plaintiffs connected to the potato industry could sue any defendant in Idaho.” Brown was joined by Justices Joyce Kennard, Kathryn Mickle Werdegar and Carlos Moreno. In dissent, Baxter argued that the trial record showed that Pavlovich’s actions were expressly aimed at California, in that he knew that two of the targeted industries — movies and computers — were either centered in the state or had a substantial presence there. “He must reasonably anticipate California litigation calling him to account for that conduct,” Baxter wrote. “That he did not know the exact identity authorized to prosecute such an action is immaterial.” Robert Sugarman, a partner in New York’s Weil, Gotshal & Manges, which represented the DVD Copy Control Association, said Monday there’s a possibility review would be sought in the U.S. Supreme Court. “The DVD Copy Control Association is very disappointed with the result and believes that the analysis of the dissenting opinion, which was joined by two judges in a 4-3 opinion, was much more persuasive than the majority opinion,” Sugarman said. “In particular, the practical effect of this opinion, as pointed out by the dissent, is that California industries that were targeted by individuals like Mr. Pavlovich have no recourse to redress their injuries except to file multiple lawsuits all over the country.” Allonn Levy, an associate in San Jose’s Hopkins & Carley who represented Pavlovich pro bono, said that industry leaders’ predictions of doom and gloom are “greatly exaggerated.” “All that this case does is it reaffirms the law that’s been in existence for the past 200 or so years,” he said. “It just correctly states that the due process clause is still in effect, despite the existence of the Internet. “And,” he continued, “it says that if you are a small business, or if you are a midsize business even, or an individual and you have presence on the Internet, that doesn’t mean that you are automatically susceptible to being sued everywhere in the United States or everywhere in the world.” The case is Pavlovich v. Superior Court (DVD Copy Control Association Inc.), 02 C.D.O.S. 11383.

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