morning may please the court my name spencer freeman i'm attorney and counsel for the opponents in this matter if i may i would like to reserve four minutes for my rebuttal we've asserted jurisdiction over the defendants pursuant to four k two which requires a specific jurisdictional analysis specific jurisdiction is a three part test st we must show the defendants either purposely avail themselves to the form or purposely directed their activities towards united states form in this particular case because of the copyright claims or deemed tort claims the issue is that of purposeful direction which will be ultimately decided under the if called or effects test a three part test and nd we need to establish that our claims arose from the defendant's form related activities if we meet these st two elements of the specific jurisdiction test the burden then shifts on that rd element that rd element being one of reasonableness and at that point the defendants have to present a compelling case that jurisdiction in the united states is unreasonable now the three part calder effects test that applies to purposeful direction requires us to establish one an intentional act two that that intentional act was expressly aimed at the united states and three that there is foreseeable harm in the form the trial court addressed these issues if found that there was an intentional act via the website and it found that the website was expressly aimed at the united states form the trial court's analysis on these issues was correct and it's in accordance with th circuit law and supreme court law however the trial court determined that there was forseeable harm in the form relying heavily if not solely on the fact that the the plaintiffs the high denture is are located in incorporated in cyprus now that reasoning in and of itself is flawed as united states supreme court ruled  keeton and this court has come as affirmed its will several times including in may of rick's photo a plaintiff does not have to reside in the jurisdiction or in the forum or be present in the forum for there to be forseeable harm in the for and that's what we have so that the reasoning itself is is flawed let's let me let me stop on that just to get a little more texture we do have on the hertz case which talks about the nerve center and i no in your pleadings you've said that you're headquartered in the united states that's a little o paper for my taste where is the headquarters in the united states is that in the record yes the declaration of john says he states that the operations are headquartered out of santa monica california but even if that wasn't headquartered well knowing and so is that is that where the company's direction s the situs of harm as this court stated in may vary it's can be either where the plaintiff is located or where the wrongful act actually occurred but even without the headquarters the plaintiffs have a  presence in the united states their servers are you in the united states they market to united states or viewers their main customer base is in the united states in fact at the time of the infringements they had seventy five thousand subscribed members through in the united states and they've had more than half a one million subscribed unique subscribed members over the course of time earning more than sixty million dollars in the united states they clearly have a presence here in addition they've registered their copyrights here once the cop a copyright infringement occurs in the forum the harm is in the form and it's clearly forseeable to be in the form so in moving from there and going back and looking at the intentional act issue the trial court did not hear before you leave the harms or we're talking for videos of how many videos after out of with five hundred million five hundred and seventy nine thousand ok but it could be one video it doesn't mean that there's not harm that there's not a devaluation of the plaintiff's own product just because it's mixed in with however many other videos they have or are having storage it doesn't matter if it's one it doesn't matter if it's one hundred thousand now that might matter as to value of damages later but it doesn't matter as to whether or not the harm was forseeable in the civility but when they are alleged and we have established facts that they went out and they found the plaintiff's video they took it and they put it on their own website then they should have forseeable harm in the form that people are going to and one difference in this case from other cases we've looked at is you have not the defendant is not necessarily making the determination  and and direction of ads here as this ad broker this in your view does that change anything it doesn't and actually doesn't in this court's view from their past rulings either a neighbor it was an ad broker also and the court explicitly said it doesn't matter when you are able to earn so much money from a jurisdiction and it's important to your profit center you either know or you're expected to know active or construction knowledge but it's not just the ads here that i think it's really important to  webs filing in barbados explicitly said where internet marketers with our business primarily in the united states and then cyber web hires net media to operate this particular web site the other crucial fact is the content delivery network now the c d n is important for the delivery of videos to be fast and efficient the location of the videos it's best that they're closer to the ultimate viewer so to have your c d n in the united states shows that you intend to serve the u s market there's no other reason to have it here in addition at the time of these infringements although it changes in the months after they were discovered at the time of the infringement the defendants actual full servers were here those were alternately moved out of the country but the cdn remained and i'm now at three minutes which i'd like to reserve thank you thank you the district court with the full benefit of complete jurisdictional discovery properly concluded that the two foreign corporation plaintiffs had failed to do so any evidence whatsoever that they had suffered any jurisdictional damages within the united states as a result of four of the videos having temporarily appeared on a website owned and operated by some of the foreign defendants that host as the court knows some five hundred and eighty thousand videos and that as such it could not properly exercise personal jurisdiction over the defendants consistent with the due process clause of the constitution  this entire case is defined by absences the plaintiffs to foreign companies that are incorporated and operate under the laws of the republic of state of cyprus are absent from the united states as an absent in their business in terms of u s customers and u s operations is that correct well interesting lee your honor that is not really what the district court found with the district court said was they make some bare bones allegations that they conduct some business in the united states and after full and complete jurisdictional discovery there was nothing to really support that idea and in fact some of the things that the plaintiffs tried to argue in front of the district court as being relevant for their so called pres within the united states turned out simply to not be true they list for example on their copyright registrations an address in encino california it turns out to be in c no mailboxes  actually and the court looked at that and said you know you say that you're here but you don't really seem to be here they talk about paying taxes within the united states but then the court found that the unrebutted evidence showed that twice their corporate registrations had been revoked for failing to pay taxes within the united states they said to the district  court that it was that it was relevant that their their presence here was shown by the fact that they had many subscribers here and yet the district court said that they had no real evidence of that other than one statement from the plaintiffs and more importantly though what the district court ended up concluding was that and this is the district court's words the bare bones allegations fail to show that they at cypress corporations were harmed in the united states much less that the harm to them in this country was foreseeable  quick question please please judge yes i'm having trouble seeing the pertinence of all of the points that you're making because it's one i wonder is if if the plaintiffs show videos to customers in the us and they charge them money for that to be members going to get a higher grade price and the defendant is showing the same videos for free when that reduces the revenues that the thank you your honor and it is it is a good question and the problem for the plaintiffs is that what they have asked the court to do and what they asked the district court to do was to assume what your honor is saying to assume that they lost some sort of revenues to assume that somebody anybody within the forum failed to renew a membership with the plaintiffs or failed to actually decide to have a membership with the plaintiffs and what the district court said is you don't come forward with any evidence that that actually happened  there were two cases your honor where that argument was similarly made ones in one hundred and thirty eight case one is a district court case from within the th circuit the th circuit case that i would suggest is ten produced pornographic still photos google was providing them through their thumbnails and in that case at least the argument was made by perfect ten and perfect ten had produced evidence to say look as google has increased the number of thumbnails of our copyrighted materials the showing our revenues during that same time are on a straight decrease and despite the fact that evidence was there and what perfect ten was asking of the court was to presume for preliminary injunction purposes that the strong evidence of copyright infringement should lead to a presumption by by the court that there were irreparable harm and instead this court rejected that theory and said quote notwithstanding perfect tens of irreparable harm it failed to submit a statement from even a single former subscriber who ceased paying for perfect ten services because of content freely available via google and the nd case and i understand obviously it's not binding on this court though i do think the court will find it to be persuasive and well reasoned is am a multimedia verses wanna get a decision from the district of arizona which is currently on appeal to this court and in the process of being briefed and for which we provided the court with the twenty eight dollars j letter the facts of that case are remarkably similar almost identical to the fact of this case with the only relevant difference being that the plaintiff there am a media is actually in nevada company so at least the plaintiff in that case had a connection to the united states unlike here and yet judge rosalind silver dismissed the case for lack of personal jurisdiction in that case the judge on similar facts found that there wasn't even express aiming or minimum contact but in any event judge silver said that these cases are not really like marv excess in as much as the the operation of a website displaying adult videos is not an attempt to target a united states specific audience as it was in marvet what's the evidence here that's that argument she's making there of course is a concern about turning websites into universal jurisdiction and so they're limiting principles are this basic course being hollywood but here if you have a set and not an insignificant amount of your customers in the united states who are aimed at by use of your ad broker why doesn't that count for purposeful direction and again and i need to separate them your honor the personal the purposeful direction arguments and understandably counsel wants to confuse the two are not the same as the significant jurisdictional harm argument and wrecked and what the court in in the cell in judge silver's words  again it was the same allegation that there was considerable traffic it was an identical argument that is being made here and judge silver said and they offers no supporting evidence that it's scribes have decreased because of eat porn or or that individuals have decided not to initiate new subscriptions because of porn or equal or offers visitors free access to its videos and attracts a large number of visitors and does not however offer evidence that visitors to eat porn or would visit and they's sites but for the existence of the porn or in other words eat porn or may not be preventing any individual from paying a m a for its services because the relevant individuals are only interested in free videos and our own willing to pay and may any amount and again concluded just as the court did here in short and mase bare bones statements of harm are not sufficient to show it is suffered significant jurisdictional harm i see your honour's that my my time was up we would ask that the court affirmed the district court's decision for a lack of  thank you if i could have respond to a few things i want to make sure that we're not confusing the requirement underneath the color effects test with regarding harm it does not require us to show actual harm it requires us to show foreseeable harm and when you look at the keaton versus hustler magazine case decided by the supreme court they didn't there was no requirement that actual harm be to be established there was no requirement that it there be a reader of the slanderous article none whatsoever in this case in maverick's there was no requirement for there to be actual harm and in fact in one th circuit case it was stated that the merits of the case don't need it should not be part of the decision on jurisdiction because otherwise a negative finding on merits would then negate the court's jurisdiction we have to show just that the harm is forseeable in the form and we have clearly done that with regard to the express aiming in this case there are i count ten facts ten points of fact that support that this is expressly aimed into the united states not only that barbados filing that explicitly says so and the c d n and then the service that we discussed before but at the time of these infringements twenty three percent beautician viewership came from the united states that's not by mistake and that is almost four times bit larger than the next largest country the u s bit based ads the defendants want to say that we don't know we didn't do it it an ad broker but with regard not only does there constructive knowledge there but that ad broker is net media it is the defendant's themselves they have these contracts with content producers they want to say well we don't establish the contracts that's a program called pay per view media operates pay per view so knowledge you have constructed knowledge you have actual knowledge of these relationships there and that's any specific evidence of geo targeting here i do believe that we have declarations submitted to discuss the geo targeting that there's there's  but what are what do you think we look to for concrete evidence of geo targeting is the declaration of jason tucker well i would also point the court to the terms of service on this website itself which is evidence excerpt record one hundred and four and two hundred and thirty four which explicitly states that if you're a california residence here's the address to file a complaint for us they clearly understand that they are broadcasting in the united thank you i don't have any further thank you counsel thank you both for your arguments this morning the case just argued will be submitted for decision