matter is before you for did overview on the question of whether or not plaintiffs made the required prima facia showing of personal jurisdiction over the defendants when you're when you're talking about a noble review there's no question it's to noble review when the facts are undisputed it's no question that when they're disputed then i give the district court clearer view specially when the district  a hearing and other words what i do is if they just submit affidavits which they did in this case and at that point i'm really looking and i'm look saying at the affidavit resolved in favor of the plaintiff if there's a dispute correct that's correct going to ballard be savage articulate the standards that's wanted to make sure you didn't get carried away with this to noble review because really what we're facing with here are two affidavits regarding specific jurisdiction correct well there's there's there's multiple declarations are different but the bottom line is we're really trying to determine if the mail it went to three hundred customers no more than ten in california and then the attorney you're the attorney for your client says that he looks at the read list of receipt recipients of lee's e mail and he makes an affidavit as the to that list right yes that's correct i ask is this levy is he the attorney for if you will i have you up here standing for an associate with your firm and he says he looks to the list of the recipients of lee's e mail right correct we the district court ordered some jurisdictional discovery we prepared some into raga tori's among which we got the list of recipients of the el the lead e mail that's that's the subject of the dispute we went through with the help of our client identifying the recipients and comparing them i would i would say  a couple things first of all i'm not sure that even if none of the recipients of that e mail were in california i still believe that we've met personal jurisdiction well let's go there then because i'm not sure your declaration says that there's even fifty five and california your declaration says fifty five percipient have companies in california but it doesn't say they live in california doesn't say what their connection is to california fact that recipient very well could have been in another state or another country all it says is there are fifty five recipients who had some company in california which doesn't really  i have to find that the defendant has not expressly aimed at the foreign state and it says right in walden it is not expressive expressly aimed at the foreign state where it only has random for two is to this or attenuated contact with the foreign state so if i look directly at walden then it doesn't seem to be that anything that mr lee's said who is just going first of all i think as to you as to the intent if we look at the email itself talking about intent ok we're through in pan i think everybody says there's an dandy here we're talking directly now is there any contact with this state in california we're going right directly to that that particular point which if i look at calder versus jones to prove the first prong the purposely direct his activities are consummate transaction i've got to prove that he committed an intentional act which i think everybody kind of says but then express aimed at the foreign state yes i'm worried that we don't have anything that says expressly aimed at the foreign state i'd leave you do because washington shoe and braden purcell in the other cases that we cited on pages nine to ten of our opening brief demonstrate that when you infringe the copyright of a california resident you have thereby met the purposeful direction test and that that alone is sufficient without getting into the customers and who it went  random this this was an intentional course of conduct and directed that california up i'm sorry you don't think but i guess i'm just trying to look at what the affidavit say and we don't have any affidavit which to explain that away saying oh well that's a lot of those aren't cities where we do business that's just really reflecting the cities where we can ship rice where we can and do ship rice protein to which my response is yes exactly the defendant and we also submitted the declaration of mr reed powell who submitted the court records that show that the defendants shipped rice protein which is the product they're promoting in need for infringing e mail into the port of los angeles they do business in california this e mail is connected to their business in california they sent it to at least some businesses that do business in california by their own admission it's at least ten and and that certainly conflict between washington shewing wall i don't believe so on of those circumstances it seems to me the real issue here is did the district judge determine a material issue of fact that is in the conflict between these two affidavits that needs to go to a trier of fact and upon which the tale of jurisdiction hangs agreed if there's any any factual dispute should be are supposed to be resolved in our favor at this stage in the proceedings and  it's obviously copied that you know there's just no other way to look at it so then trier of fact gets to determine whether it meets the brady purcel test is that your analysis of it as well well i think  the i think questions of of of intended state of mind you know going beyond what what's what's in the record i think that gets into the facts because i think we've presented facts that are sufficient to support an inference that  and you don't have a specific jurisdiction well i want to be careful because i think that it depends whether we're talking about i don't think that we have to show i guess i think that infringing on my client intellectual property alone establishes that and there are the other facts i mentioned showing that it was in connection with doing business attempts to do business in california make that clear i mean i mean i mean respond with a couple  you rely on its holding to really get where you're going i don't think i don't think it depends on the whole i think it's an example of the reason i ask that the rate increase sale really was in the jurisdiction case was it the proper venue case no but you know order to determine the question of venue the court looked at the jurisdictional issue i believe also it was an analogous i'd have to look at it again i don't really think it did but let's go on one further it seems to fred martin which you've got two three prongs to meet the district court didn't even get to the third and fourth prong or second third prong right they only decided this on the first prong i believe that's correct did anybody ever argue anything about the national minimum context test we did raise that we did raise that issue it there's not a massive difference depending whether you look at it as california that's i would say the i'm not i'm not really talking about that i mean my worry is that judge smith and i can can look very hard at the first part of this warts and egger test but if we were to agree even on the first part of this war it's a nigger trask shouldn't we return this to the district court to really think about the second appropriately situated to to make the same analysis at the pleading stage to have a hearing it just so happens on the first prong they did that's correct or or the defendants could raise their personal jurisdiction defense sat at a later stage i mean ask it and it because nobody addressed the national minimum context just we really could let the district court think about that first that that would also be actually since the district court going to have a hearing about that that's one option obviously the the district court has that has the power to do that if the end and obviously you have the power to direct it to do so i don't think that's necessary i think that we've we've a stamp we addressed  the district court would also have to look at problems two and three to make a determination right well yes i mean obviously we have to we have to establish all three prongs whether that's because you agree me that on the current record we've established all three problems or because you regret and then we showed her the district court satisfaction that we have satisfied all three progs well i only have i have just one one question it's a little bit it we've been kind of assuming that the first prong has been satisfied or schwarzenegger but i have troubles a little question about that schwarzenegger's first prong says the defendant made must have had purposefully direct activities into the form now we know that the defendant here did mail some of these mailers or sent the e mails into the indicate a foreigner but in interpret in that first prong we didn't have the supreme court's case of cold or v jones this is this is going to tell you how to interpret that first prong of purposely directing and cold of the jones has a three part cumulative test and the third prong of color of the jones says that it has to be cumulative lee something that causes harm that the defendant knows is likely to be suffered in the form state so that harm that the defendant know is likely to be suffered in so at that point my question to you is if the defendant intends to compete in california but does not know that it is a copyright that there infringing copyright does the defendant know that it is causing harm to be suffered in the form state is the harm that the defendant has no harm the result from a normal competition or does this require for for jurisdictional purposes a prove that the defendant had to know that situation to show that the defendant was knowingly committing copyright in the sense of actually knowing that it was an infringement so in other words the knowing harm simply means you would read it knowingly competing well knowingly knowingly competing but specifically competing by using these graphics and logos now the fact that a but but but but it when the word harm is used years using harm means simply competitive harm not not see any harm of hurting you because i'm using a copyright i shouldn't use well it's it's both but it's in terms of using a copyright i shouldn't use it the fact that you you chose to use the copyrighted material not but but assuming here and because that's what that's what this affidavit so who says that we didn't know we were using a copyright so it kind of makes a difference to me on that analysis but i don't see any evidence really that show except unless you were to compare the two and somehow say that the defendant knew or should have known that this was a copyrighted material but in any event that's that's my question and i think you've answered it adequately  controverted issue a material fact don't we have to send this back to the district court to make a determination and have a trier of fact determined basically each of the elements of the calder test and in this  case as interpreted in part as a result of the bright brayden personal case we've got a copy right here don't we need to send that back in the district court needs to determine what happened with problems two and three before you all can declare victory no we do not because the declaration and supplemental declaration of misleading obviously show that under the color effects test some some test how could they not been intended to compete in that home state now again my colleagues to raise some interesting questions about whether the people had offices in the state those are issues of fact they're usually determined in a hearing but the reality is it let's just say that the district court had the exact opposite interpretation of what ms lee said then you've got a problem right the first prong is satisfied question the district court said it was plausible more plausible that it was her way but that was a determination of fact a material fact in this case so if the district court had found otherwise and conc looking at the two things there was no way that you could have one magically appear be identical to the other and not have a knowing violation isn't that an important germination for a district court to make but it's not a factual dispute there is no contrary evidence there is just more of expected what was copied was part of the evidence was it not yes you just like out it you can see the same so why isn't that part of the termination that the district court needs to make because i don't find trier of fact that are said because there is no competent evidence supporting the speculation that mrs lee did intend to infringe copyright didn't tend to use properly it to fifty five companies that happen to have outfits or locations within the state of california that there is no question that she can say that because she doesn't admit that she copied it that you can't even consider whether there was copying is that what you're saying that's not what i'm saying in particular the third prong of the call to test is crucial here it's the knowledge i'm just one of the three judges but it seems to me that the district judge made a factual determination immaterial issue of fact determination that if it's decided contrary to what the district court originally decided then the first satisfied forget the other two you have to be taken care of and i would address those right that is right however however i just want to make sure we keep this with all these prongs running around i think we have to make this pretty clear yes but this record did address the first prong of the swartz megger test correct correct and the first prong of the swartz nigger test has three prongs as well exactly what the district court did not do is address prong two and three of the supports a nigger test but the district court did address prongs two and three of the calder test correct that is correct i just want to make sure that's pretty obvious on the record because my worry is that i was looking for evidence i was looking for what evidence there is in what your opposition has suggested which would suggest all right so while we're saying the first one would be intentional and everybody agrees of that expressively aimed we're really looking directly at what places she sanath and where right activity towards counseling ok and i thought i addressed that with counsel about the two affidavits i mean you can't deny that if we agree with what's in the levy affidavit there's at harm that he knows is likely to be suffered in the form state are you suggesting there is no evidence of that she did not know that she was causing harm she did not realize that this was copyright protected material just a moment if i can ask him that though and if the copyright to do copyright harm does not require intentional acts those are kind of strict liability i think that is correct so that makes another wrinkle here in this is not a c at her crime or not a crime is not a scene or tort that's right but let's go so then we go back to maybe to when when we says this causing harm question we really are not asking whether ms levy knew what she was doing was violating the copyright law or not because you know there isn't a test maybe is just simply did she know that that act would likely are put birds hoping to create competitive harm so maybe that satisfies that test you know because she would need to know that the for allegedly proprietary copyright protected material belong to a california well but home how i mean surely there's a syfy that i mean she knew where these copyright we have a difference here too under washington should because individualized targeting is established when the plaintiff alleges that a defendant's willful infringement a plaintive copyright and to the defendant's knowledge of both the existence of the copyright in the form of the copyright holder we have neither of us here we do not have willful copyright infringement we have innocent friends which to your point it is a strict liability tort well that's substantive perhaps that's your contention that your contention that is our contention but if you have if you have something as copyrighted low c and somebody takes it we don't have here and they you know you know again what i'm saying is that it seems to me that what you've got is a factual dispute if you're right if you're if you're correct then you're going to win on this if you're wrong then the district judge just got to determine the other two prongs to decide worse where w ok yes other questions the fact that this copyright had never been properly registered what fact what does that what does that fact play into this an not much except that i think it's is evidence of the lack of importance to the to the plaintive of this property until after it saw that it had