Will Co., Ltd. v. Ka Lee ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILL CO., LTD., a limited liability No. 21-35617
company organized under the laws
of Japan, D.C. No.
Plaintiff-Appellant, 3:20-cv-05802-
BHS
v.
KA YEUNG LEE, an individual; OPINION
YOUHAHA MARKETING AND
PROMOTION LIMITED, a foreign
company; DOES, 1–20, doing
business as ThisAV.com,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted May 18, 2022
Seattle, Washington
Filed August 31, 2022
Before: Kim McLane Wardlaw, Ronald M. Gould, and
Mark J. Bennett, Circuit Judges.
Opinion by Judge Wardlaw
2 WILL CO., LTD. V. LEE
SUMMARY *
Personal Jurisdiction
The panel reversed the district court’s dismissal of a
copyright suit for lack of specific personal jurisdiction and
remanded for further proceedings.
Will Co. Ltd., a Japanese adult entertainment producer,
brought this copyright infringement action against the
owners and operators of ThisAV.com, a video-hosting site
based in Hong Kong, alleging that the site was displaying
without authorization several of its copyrighted works. The
district court found that it lacked specific personal
jurisdiction over ThisAV.com’s owners and operators
because Will Co. could not establish that they “expressly
aimed” ThisAV.com’s content at the United States market,
or that it was foreseeable that operating the site would cause
jurisdictionally significant harm in the United States.
Defendants were Youhaha Marketing and Promotion
Limited (“YMP”) and Ka Yeung Lee.
The panel held that under Federal Rule of Civil
Procedure 4(k), the federal long-arm statute, a federal court
may exercise jurisdiction over a foreign defendant if: (1) the
claim arises under federal law, (2) the defendant is not
subject to jurisdiction in any state’s courts of general
jurisdiction, and (3) exercising jurisdiction comports with
due process. Defendants conceded the first two elements.
As to the third element, the exercise of personal jurisdiction
over a defendant comports with due process if a defendant
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
WILL CO., LTD. V. LEE 3
has “minimum contacts” with the relevant forum such that
the exercise of jurisdiction does not offend traditional
notions of fair play and substantial justice. In the context of
tort claims, like the Copyright Act claims at issue here, a
defendant has the requisite minimum contacts with the
forum if: (1) the defendant purposefully directs its activities
at the forum, (2) the lawsuit arises out of or relates to the
defendant’s forum-related activities, and (3) the exercise of
jurisdiction is reasonable.
To determine whether defendants purposefully directed
their activities at the forum, the panel applied the “Calder
Effects Test” and asked whether defendants: (1) committed
an intentional act, (2) expressly aimed at the forum state,
(3) causing harm that the defendant knows is likely to be
suffered in the forum state. As to the first element, the panel
concluded that both YMP and Lee committed at least one
intentional act by operating ThisAV.com and purchasing its
domain name and domain privacy services. As to the second
element, both defendants did “something more” than mere
passive operation of the website. Their advertising structure
demonstrated that they profited from viewers in the United
States market, and their intent to cultivate an audience in the
United States was demonstrated by their choice to host the
website in Utah and to purchase content delivery network
services for North America, which made the site load faster
for viewers there, and by the fact that the webpages they
posted on the site that addressed legal compliance were
relevant almost exclusively to viewers in the United States.
As to the third element, defendants’ conduct caused harm in
the United States because there were almost 1.3 million
visits to their website in the United States during the relevant
period, and that harm was foreseeable.
4 WILL CO., LTD. V. LEE
The panel held that defendants “purposefully directed”
their operation of ThisAV.com at viewers in the United
States. The panel reversed and remanded to the district court
to conduct the remainder of the personal jurisdiction analysis
under Rule 4(k).
COUNSEL
Spencer D. Freeman (argued), Freeman Law Firm Inc.,
Tacoma, Washington, for Plaintiff-Appellant.
Evan Fray-Witzer (argued), Ciampa Fray-Witzer LLP,
Boston, Massachusetts; Valentin Gurvits and Frank
Scardino, Boston Law Group PC, Newton, Massachusetts;
Philip P. Mann, Mann Law Group PLLC, Seattle,
Washington; for Defendants-Appellees.
OPINION
WARDLAW, Circuit Judge:
Will Co. Ltd., a Japanese adult entertainment producer,
brought this copyright infringement action against the
owners and operators of ThisAV.com, a video-hosting site
based in Hong Kong, alleging that the site was displaying
without authorization several of its copyrighted works. The
district court dismissed the suit, finding that it lacked
specific personal jurisdiction over ThisAV.com’s owners
and operators because Will Co. could not establish that they
“expressly aimed” ThisAV.com’s content at the United
States market, or that it was foreseeable that operating the
site would cause jurisdictionally significant harm in the
WILL CO., LTD. V. LEE 5
United States. We disagree, and reverse and remand for
further proceedings.
I.
A.
Will Co. Ltd. is a Japanese entertainment company that
produces adult videos featuring Japanese models in Japanese
environments. The firm has produced more than 50,000 full-
length videos and has registered in the United States for
copyright protection for all of them. It sells access to its
videos exclusively on R18.com, and makes over one million
dollars a year selling its content to consumers in the United
States.
To protect its market share, Will Co. actively
investigates and reviews sites that display Japanese erotica
for free looking for instances of copyright infringement. In
June 2020, the firm discovered that one of those sites,
“ThisAV.com,” was displaying thirteen of its videos without
permission. It sent ThisAV.com take-down notices pursuant
to the Digital Millennium Copyright Act (“DMCA”),
17 U.S.C. § 512(c). When the works were not removed,
Will Co. brought this suit against Does 1–20 under the
Copyright Act, 17 U.S.C. § 101 et. seq. After limited
discovery, revealing that Youhaha Marketing and Promotion
Limited (“YMP”) owns ThisAV.com, and Ka Yeung Lee
(“Lee”) serves as a Director of YMP, Will Co. named them
as Defendants.
Shortly thereafter, Defendants moved to dismiss this
lawsuit under Rule 12(b)(2) for lack of personal jurisdiction.
Will Co. conceded that the district court lacked general
personal jurisdiction over either defendant. Lee is a
permanent resident of Hong Kong and currently resides in
6 WILL CO., LTD. V. LEE
Canada, and YMP is registered in Hong Kong and operates
ThisAV.com exclusively out of its offices there. However,
Will Co. asserted that the district court had specific personal
jurisdiction over both defendants because the tortious
conduct in which they allegedly engaged, running
ThisAV.com, which unlawfully displayed copyrighted
videos, was sufficiently connected to the United States.
In their briefing before the district court, the parties
asserted the following relevant facts about the operation of
the site. ThisAV.com is a Japanese-language video-hosting
website. Like YouTube, it allows users to upload and view
videos for free and makes its money by displaying ads
alongside those videos. As of February 2021, there were a
total of 221,541 user-uploaded videos on the site. The
majority of those videos had titles written in the Japanese
alphabet and were in Japanese.
Defendants Lee and YMP created the site and purchased
its domain name (ThisAV.com). They acquired hosting
services from an American company, Gorilla Servers, with
servers in Utah. They purchased content delivery network
(CDN) services from Cloudflare, another American
company, and utilized Cloudflare’s network of servers in
North America and Asia. And they purchased a website
template with some pre-existing text and images, which they
modified to suit their needs.
Most of the website’s text is in Japanese. However, all
of the pages focused on legal compliance are in English and
are geared toward compliance with United States law. The
“Privacy Policy” page states that it is legal to access the site
in the United States, but makes no guarantees about the
legality of access from other nations:
WILL CO., LTD. V. LEE 7
[ThisAV.com] is a website available from its
location in the United States of America. We
at ThisAV.com do not warrant or make any
discretion about its appropriate use and
availability outside the aforementioned
country. If the ThisAV.com website is
accessed outside of the relevant location,
those users must comply with their local
jurisdiction regarding website access and
usage.
The “Terms and Conditions” page states that the content on
the site is “subject to copyright and other intellectual
copyright under United States, Canada and other foreign
laws and international conventions.” And finally, two
related pages entitled “DMCA” and “2257” provide the
site’s procedures for compliance with two United States
laws, the Digital Millennium Copyright Act, 1 17 U.S.C.
§ 512(c), which implements international agreements
regarding copyright protection, and 18 U.S.C. § 2257,2
1
The “DMCA” page states: “In accordance with the Digital
Millennium Copyright Act of 1988 . . . Thisav will respond
expeditiously to claims of copyright infringement that are reported to
Thisav’s designated copyright agent identified below. Please also note
that under Section 512(f) any person who knowingly materially
misrepresents that material or activity is infringing may be subject to
liability . . . All claims of . . . copyright infringement on or regarding this
Website should be delivered to Thisav’s designated copyright agent at
the following email address: copyright@thisav.com . . . .”
2
The “2257” page states: “With respect to the records as per 18 USC
2257 for any and all content on this site please kindly direct your request
to the site for which the content was produced . . . [F]or further assistance
and/or information in finding the content’s originating site, please
contact ThisAV.com compliance at compliance@thisAV.com.”
8 WILL CO., LTD. V. LEE
which requires that producers of adult content keep records
of all performers’ dates of birth and other information.
While YMP and Lee set up the site, they have a relatively
limited role in operating it on a day-to-day basis. They do
not themselves post any content, as all of the videos on the
site are uploaded by users. Nor do they place any ads; rather,
they sell all of the advertising space on the site to third-party
vendors. 3 Several of those third-party ad vendors use geo-
targeting to place their ads, which means that viewers in a
particular location are served ads relevant to that location.
So, for example, a person visiting the site from China might
receive an ad in Chinese for a hotel in Beijing, while a person
visiting the site from the United States might receive an ad
in English for a hotel in Chicago.
Most of ThisAV.com’s viewers are located in Asia.
However, the site has a significant audience in the United
States. During the period the allegedly infringing videos
were on display, April 1, 2020 to June 30, 2020, the site was
viewed approximately 28 million times. Nearly 85% of
those views came from three countries: Japan (52.5%),
Taiwan (15.7%), and Hong Kong (15.4%). Although only
4.6% of the views came from within the Unites States, that
percentage amounted to more than 1.3 million views.
B.
On June 30, 2021, the district court granted Defendants’
motion to dismiss for lack of personal jurisdiction. It held
that Will Co. failed to establish two necessary elements for
3
YMP admits that it did contract directly with one advertiser on one
occasion, but that advertiser was based in Hong Kong, and the
advertisement it placed was not directed at the United States.
WILL CO., LTD. V. LEE 9
specific personal jurisdiction: that the content on
ThisAV.com was “expressly aimed” at the United States,
and that by operating ThisAV.com Defendants caused
“jurisdictionally significant harm.” The district court
determined that Will Co. failed to establish the Defendants
had expressly aimed the site’s contents at the United States,
reasoning that the jurisdictional facts here are
indistinguishable from those of a recent Ninth Circuit case,
AMA Multimedia, LLC v. Wanat, 970 F.3d 1201 (9th Cir.
2020), in which we found against jurisdiction because the
defendant had not expressly aimed the operation of his
website at the United States. And the district court held that
there was no jurisdictionally significant harm because during
the relevant period only 4.6% of the site’s viewers were in
the United States, so the “brunt of the harm” had occurred
elsewhere. This timely appeal followed.
II.
We review the district court’s dismissal for lack of
personal jurisdiction de novo. See Picot v. Weston, 780 F.3d
1206, 1211 (9th Cir. 2015). When a defendant moves to
dismiss a complaint for lack of personal jurisdiction, the
plaintiff bears the burden of demonstrating that jurisdiction
is appropriate. See Schwarzenegger v. Fred Martin Motor
Co., 374 F.3d 797, 800 (9th Cir. 2004). When the
Defendant’s motion is based on written materials rather than
an evidentiary hearing, as is the case here, “we only inquire
into whether [the plaintiff’s] pleadings and affidavits make
a prima facie showing of personal jurisdiction.” Id.(alteration in original) (quoting Caruth v. Int’l
Psychoanalytical Ass’n, 59 F.3d 126, 128 (9th Cir. 1995)).
Uncontroverted allegations in the complaint must be taken
as true, and conflicts between parties over statements
10 WILL CO., LTD. V. LEE
contained in affidavits must be resolved in the plaintiff’s
favor. Id.III.
Federal Rule of Civil Procedure 4(k) governs personal
jurisdiction in federal court. In this case, Will Co. contends
the district court erred by dismissing this action because it
has specific personal jurisdiction 4 under Rule 4(k)(2), often
referred to as the federal long-arm statute.
A.
Under Rule 4(k)(2), a federal court may exercise
jurisdiction over a foreign defendant if: (1) the claim arises
under federal law, (2) the defendant is not subject to
jurisdiction in any state’s courts of general jurisdiction, and
(3) exercising jurisdiction comports with due process. See
Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1159 (9th Cir.
2006). Defendants concede that Will Co.’s claim arises
under federal law and that they are not subject to jurisdiction
in any state court of general jurisdiction, so the determinative
question here is whether the exercise of jurisdiction over
them comports with due process.
The exercise of personal jurisdiction over a defendant
comports with due process if a defendant has “minimum
contacts” with the relevant forum such that the exercise of
jurisdiction “does not offend traditional notions of fair play
4
A court may exercise either “general” or “specific” personal
jurisdiction over a defendant. Easter v. Am. W. Fin., 381 F.3d 948, 960
(9th Cir. 2004). Will Co. concedes that the court lacks general
jurisdiction over Defendants, so the only issue is whether the court has
specific personal jurisdiction over Will Co.’s claims against Lee and
YMP.
WILL CO., LTD. V. LEE 11
and substantial justice.” Int’l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945) (internal quotation marks and
citation omitted); see also Schwarzenegger, 374 F.3d at 801.
In the context of tort claims, like the Copyright Act claims
at issue here, a defendant has the requisite minimum contacts
with the forum if: (1) the defendant “purposefully direct[s]”
its activities at the forum, (2) the lawsuit “arises out of or
relates to the defendant’s forum-related activities”, and
(3) the exercise of jurisdiction is “reasonable.” Mavrix
Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1227–28
(9th Cir. 2011) (internal citations omitted).
This appeal revolves around prong one of that test:
whether Defendants “purposefully directed” the content of
ThisAV.com at the United States. To determine whether a
defendant “purposefully directed” its activities at the forum,
we apply the “Calder Effects Test” and ask whether the
defendant: “(1) committed an intentional act, (2) expressly
aimed at the forum state, (3) causing harm that the defendant
knows is likely to be suffered in the forum state.”
Schwarzenegger, 374 F.3d at 803 (quoting Dole Food Co. v.
Watts, 303 F.3d 1104, 1111 (9th Cir. 2002)); see also Calder
v. Jones, 465 U.S. 783 (1984). We analyze those factors in
turn.
B.
Both YMP and Lee committed at least one “intentional
act.” For the purposes of personal jurisdiction, a defendant
acts intentionally when he acts with “an intent to perform an
actual, physical act in the real world, rather than an intent to
accomplish a result or consequence of that act.”
Schwarzenegger, 374 F.3d at 806. We have held that
“operating a passive website,” purchasing a domain name
and purchasing domain privacy services are all intentional
acts. AMA Multimedia, 970 F.3d at 1209 (citation omitted);
12 WILL CO., LTD. V. LEE
see also Pebble Beach, 453 F.3d at 1156. It is undisputed
that YMP operated ThisAV.com, and that Lee purchased its
domain name and domain privacy services. Thus, the first
purposeful direction element is readily satisfied.
C.
Whether Lee and YMP “expressly aimed” ThisAV.com
at the United States market is a closer question. In
examining whether “tortious conduct on a [globally]
accessible website is expressly aimed at any, or all, of the
forums in which the website can be viewed,” we look to the
actions of the operators in operating the site. Mavrix,
647 F.3d at 1229. Mere passive operation of a website is
insufficient to demonstrate express aiming. See AMA
Multimedia, 970 F.3d at 1209–1210 (citation omitted)
(requiring “something more” than simply making the
website accessible in the forum). Rather, the operator must
have both actively “appeal[ed] to” and “profit[ed] from” an
audience in that forum. Id. at 1210.
For example, in Mavrix Photo Inc., v. Brand
Technologies, Inc., 647 F.3d 1218 (9th Cir. 2011), Mavrix
Photo, an agency that licensed candid photos of celebrities
to publications like People and US Weekly magazines, sued
Brand Technologies and Brad Mandel (collectively
“Brand”), who operated the celebrity gossip website
celebrity-gossip.net, for copyright infringement in the
Federal District Court for the Central District of California.
Id. at 1221–24. Mavrix alleged that Brand had displayed
several of its copyright protected photos on celebrity-
gossip.net without its permission. Id. at 1223. Brand moved
to dismiss, arguing the Central District of California lacked
specific personal jurisdiction. Id.WILL CO., LTD. V. LEE 13
We held that Brand had “expressly aimed” the content of
celebrity-gossip.net at the California market because it had
both appealed to and profited from consumers there. Id.
at 1229. It appealed to the California market by posting
stories and ads that were particularly relevant to California
consumers. For example, it posted stories about the “the
California-centered celebrity and entertainment industries,”
and ads for jobs, hotels, and vacations in California. Id. at
1222, 1230. And it “profit[ed] from” California consumers
through advertising revenue. Id. at 1231. Brand made its
money by selling the advertising space on its website to
third-party advertisers, so “the more visitors there [were] to
the site, the more hits that [were] made on the
advertisements; the more hits that [were] made on the
advertisements, the more money that [was] paid by the
advertisers to Brand.” Id. at 1230. Therefore, because “[a]
substantial number of hits to Brand’s website came from
California residents,” California consumers had generated a
substantial profit for the firm. Id.By contrast, in AMA Multimedia v. Wanat, 970 F.3d
1201 (9th Cir. 2020), we found that AMA, an adult
entertainment producer, had not met its burden to show that
the defendant Marcel Wanat, the operator of ePorner.com,
an adult-video-hosting site similar to ThisAV.com, had
actively appealed to the United States market. Id. at 1204.
Unlike in Mavrix, the content of the site’s videos and
advertisements provided no evidence of Wanat’s subjective
intent to appeal to or profit from users in any particular
forum because all of the videos were uploaded by users, and
all of the advertisements were placed by third parties not
located in the United States who tailored the advertising
themselves. Id. at 1210–11. Thus, although over 20% of
ePorner.com’s traffic derived from United States users, that
fact shed little light on whether ePorner.com was expressly
14 WILL CO., LTD. V. LEE
aimed at those users in light of the advertising structure it
employed. Id.AMA pointed to two other pieces of evidence that Wanat
had actively targeted the United States market, both of which
we rejected. First, AMA pointed to Wanat’s choice to use
Tiggee as a domain service provider. Tiggee advertised
itself as one of the fastest domain service providers for site
visitors in the United States. Id. at 1212. However, AMA
adduced no evidence that Wanat had selected Tiggee or was
motivated to do so because he wanted to appeal to U.S.
viewers. Id. Second, AMA argued that every website visitor
assented to the site’s Terms of Service. Therefore, Wanat
had entered into a contract with every person who used the
site, including visitors in the United States. Id. We
explained that while those terms of service “could create
specific jurisdiction in the United States for [suits alleging]
violation of those terms,” they “[did] not evince Wanat’s or
ePorner’s effort to target the U.S. market” because they were
irrelevant to Wanat’s subjective intent. Id. Therefore, even
though Wanat had likely profited from the forum—nearly
20% the site’s traffic came from the United States—
Plaintiffs did not meet their burden to show he had actively
appealed to consumers in the U.S., so there was no “express
aiming.” Id. at 1211.
Here, unlike in AMA Multimedia, Will Co. met its burden
of showing “something more” to demonstrate that
Defendants “appeal[ed] to” and “profit[ed] from” the U.S.
market. Id. at 1210. First, the advertising structure
Defendants employed demonstrated that they profited from
viewers in the United States market. Like the Defendants in
Mavrix, ThisAV.com “makes its money by selling
advertising space on its website to third-party advertisers,”
so “the more visitors there are to the site, the more hits that
WILL CO., LTD. V. LEE 15
are made on the advertisements; [and] the more hits that are
made on advertisements, the more money that is paid by the
advertisers to [YMP and Lee].” Mavrix, 647 F.3d at 1230.
Therefore, because ThisAV.com was viewed by people in
the United States more than 1.3 million times during the
relevant period, the site earned considerable revenue from
that market.
Whether Defendants intentionally appealed to U.S.
consumers is a closer question. However, unlike the
Plaintiff in AMA, Will Co. provided evidence that
Defendants made at least two key choices demonstrating
their intent to cultivate an audience in the United States.
First, Defendants chose to host the website in Utah and
to purchase content delivery network services for North
America, which reduced the time it takes for the site to load
in the United States. The time it takes for a site to load,
sometimes referred to as a site’s “latency,” is critical to a
website’s success. 5 For one, swift loading is essential to
getting users in the door. The faster a site loads in a
particular location, the better its search engine optimization
(SEO) will be there, that is, the higher it will appear in search
engine results as compared to competitors. 6 Appearing early
in search results is critical to attracting web traffic. Studies
show that 93% of online experiences begin with the user
5
See What is a CDN? How do CDNs Work?, Cloudflare, available
at https://www.cloudflare.com/learning/cdn/what-is-a-cdn/ (last visited
Aug. 9, 2022); What is Latency?, Cloudflare, https://www.cloudflare.co
m/learning/performance/glossary/what-is-latency/ (last visited Aug. 9,
2022).
6
See How Site Speed Influences SEO, Yoast, https://yoast.com/how-
site-speed-influences-seo/ (Nov. 13, 2018) (last visited Aug. 9, 2022).
16 WILL CO., LTD. V. LEE
typing something into a search engine, 7 and that the results
on the first page receive nearly 92% of overall traffic for that
term. 8 Swift loading is also crucial to keeping potential site
visitors engaged. Research shows that sites lose up to 10%
of potential visitors for every additional second a site takes
to load, 9 and that 53% of visitors will simply navigate away
from a page that takes longer than three seconds to load.10
Even tiny differences in load time can matter. Amazon
recently found that every 100 milliseconds of latency cost it
1% in sales. 11
There are a few ways sites can make their pages load
faster. For one, the site’s operators can choose to host their
7
See AJ Agarwal, How To Optimize Your SEO Results Through
Content Creation, Forbes, https://www.forbes.com/sites/ajagrawal/201
7/08/30/how-to-optimize-your-seo-results-through-content-creation/?sh
=28612ea2aa37 (Aug. 30, 2017) (last visited Aug. 9, 2022).
8
See Kelly Shelton, The Value of Search Results Rankings,
https://www.forbes.com/sites/forbesagencycouncil/2017/10/30/the-valu
e-of-search-results-rankings/?sh=56b02d0544d3 (Oct. 30, 2017) (last
visited Aug. 23, 2022); Alex Valencia, Why SEO Still Matters in
2020, Forbes, https://www.forbes.com/sites/forbesagencycouncil/2020/
03/10/why-seo-still-matters-in-2020/?sh=86686b734b14 (Mar. 10,
2020) (last visited Aug. 9, 2022).
9
See Matthew Wall, How Long Will You Wait For a Shopping
Website to Load, BBC News, https://www.bbc.com/news/business-
37100091 (Aug. 19, 2016) (last visited Aug. 9, 2022).
10
See Consumer Insights, Google Data, https://www.thinkwithgoo
gle.com/consumer-insights/consumer-trends/mobile-site-load-time-stati
stics/ (last visited Aug. 9, 2022).
11
See Amazon Study: Every 100ms in Added Page Load Time Cost
1% in Revenue, ContentKing, https://www.contentkingapp.com/acade
my/page-speed-resources/faq/amazon-page-speed-study/ (Aug. 10,
2021) (last visited Aug. 22, 2022).
WILL CO., LTD. V. LEE 17
site on servers near their desired audience. The closer a
viewer is located physically or geographically to the host
server, the faster that page will load for the viewer. 12
Second, the site’s operators can purchase access to a content
delivery network (CDN), a distributed network of servers
covering a particular geographic area, which permits users
to access the site from any server in the network, not just the
host server, and thus decreases the distance between users
and the server. 13 This allows persons within the area covered
by the CDN to access the site more quickly.
In this case, by choosing to host ThisAV.com in Utah
and to purchase CDN services for North America,
Defendants chose to have the site load faster for viewers in
the United States and slower for viewers in other places
around the world. Given how important loading speed is to
achieving and maintaining an audience, Defendants’ choice
is good evidence that they were motivated to appeal to
viewers in the United States more than any other
geographical location.
Second, the webpages Lee and YMP posted on the site
that address legal compliance are relevant almost
exclusively to viewers in the United States. The “Privacy
Policy” page specifically guarantees that it is lawful for
persons in the United States to access ThisAV.com, but
provides no such guarantee for persons in other nations:
12
See What is Latency?, Cloudflare, https://www.cloudflare.com/le
arning/performance/glossary/what-is-latency/ (last visited Aug. 9,
2022).
13
What is a CDN? How do CDNs Work?, Cloudflare,
https://www.cloudflare.com/learning/cdn/what-is-a-cdn/ (last visited
Aug. 9, 2022).
18 WILL CO., LTD. V. LEE
ThiaAV.com [sic] is a website available from
its location in the United States of America.
We at ThisAV.com do not warrant or make
any discretion about its appropriate use and
availability outside the aforementioned
country. If the ThisAV.com website is
accessed outside of the relevant location,
those users must comply with their local
jurisdiction regarding website access and
usage.
Further, while the “Terms and Conditions” page states that
the content on the site is “subject to copyright and other
intellectual copyright under United States, Canada and other
foreign laws and international conventions,” the site
provides specific pages dealing with compliance with United
States law only: the “DMCA” page and the “2257” page.
Notably, while the majority of the site is in Japanese, the
legal compliance pages are in English, and thus readily
comprehensible to the average person in the United States.
Defendants’ counterarguments are unavailing. First,
they object to two of Will Co.’s factual assertions. They
object to Will Co.’s assertion that the CDN they purchased
only decreases latency in North America and Asia, arguing
that it actually decreases latency all around the world.
However, at this stage, we resolve factual disputes in favor
of the plaintiff, so we must assume that the CDN Defendants
purchased decreased load times in North America and Asia
only. See Schwarzenegger, 374 F.3d at 800.
Defendants also object to Will Co.’s assertion that they
intentionally posted the compliance pages. They claim that
the content on those pages came with the website template
they purchased, and that they inadvertently failed to remove
WILL CO., LTD. V. LEE 19
it. Will Co. counters that even if those pages came with the
template Defendants used, they chose to customize them
with their own contact information, which demonstrates they
knew the pages existed and made the decision to keep them.
Again, at this stage we resolve factual disputes in favor of
the plaintiff, so for the purposes of resolving this motion, we
must assume that Defendants intended to post the content
that appears on the compliance pages, and thus that it is
evidence of their subjective intent to target the U.S. market.
Id.Second, Defendants point to several cases holding that
the location of a site’s server alone cannot establish express
aiming. However, the authority they cite simply states that
the location of the server alone is insufficient to establish
personal jurisdiction, not that it is irrelevant to the analysis.
See, e.g., Hungerstation LLC v. Fast Choice LLC, No. 20-
15090, 2021 WL 1697886, at *2 (9th Cir. Apr. 29, 2021)
(“Our circuit has never decided that personal jurisdiction is
proper over a private foreign entity solely because that entity
engaged in tortious conduct from a location outside of the
United States by remotely accessing servers located in the
United States.”) (emphasis added).
Finally, Defendants argue that the evidence of
intentionality shows only that they anticipated persons in the
United States might access the site and therefore prepared
for them, not that they specifically sought out those viewers.
Defendants are correct that the fact that a site’s operators
anticipated persons from a particular forum might access the
site is not enough to show they actually desired those
viewers. See AMA Multimedia, 970 F.3d at 1210 (“Although
Wanat may have foreseen that ePorner would attract a
substantial number of viewers in the United States, this alone
does not support a finding of express aiming.”). So here, it
20 WILL CO., LTD. V. LEE
would be insufficient for Defendants to have simply
anticipated people from the United States might access
ThisAV.com and to have set up pages to make sure they
could do so lawfully. But in this case, Defendants did
significantly more than that. In addition to the hosting and
CDN, the site specifically states that access is only lawful in
the United States, and provides compliance procedures only
for the United States, which means it prepared for U.S.
visitors to the exclusion of all others.
Therefore, we find that the Defendants both appealed to
and profited from a United States audience, and thus
expressly aimed the site at the United States.
D.
Finally, Will Co. must show that the conduct at issue
caused harm in the United States, and that that harm was
foreseeable. See Keeton v. Hustler Magazine, 465 U.S. 770,
776 (1984); see also Dole Food Co., 303 F.3d at 1113.
A defendant causes harm in a particular forum when the
“bad acts” that form the basis of the plaintiff’s complaint
occur in that forum. Mavrix, 647 F.3d at 1231. If a
Defendant’s actions cause harm in multiple fora, jurisdiction
is proper in any forum where a “sufficient” amount of harm
occurs, even if that amounts to only a small percentage of
the overall harm caused. Yahoo! Inc. v. La Ligue Contre Le
Racisme Et L’Antisemitisme, 433 F.3d 1199, 1207 (9th Cir.
2006) (en banc) (“We take this opportunity to clarify our law
and to state that the ‘brunt’ of the harm need not be suffered
in the forum state. If a jurisdictionally sufficient amount of
harm is suffered in the forum . . . it does not matter that even
more harm might have been suffered in another [forum].”).
For example, in Keeton v. Hustler Magazine, 465 U.S. 770(1984), the Supreme Court held that New Hampshire had
WILL CO., LTD. V. LEE 21
personal jurisdiction over the publisher of a national
magazine, Hustler, even though just over one percent of
sales occurred in that state, because that one percent still
amounted to “a substantial number of copies.” Id. at 780–
81. We find this case is closely analogous to Keeton. While
just 4.6% of ThisAV.com’s views occurred in the United
States during the relevant period, that amounted to over
1.3 million visits, an undeniably “substantial” number. See
also AMA Multimedia, 970 F.3d at 1220 (Gould, J.,
dissenting).
We also find that the harm was foreseeable. The
operators of ThisAV.com actively appealed to a U.S.
audience, knew that a significant number of people in the
United States were actually viewing the website, and were
put on notice that they were hosting infringing content when
Will Co. sent them a takedown notice. In light of that, it’s
hard to see how Defendants could have failed to anticipate
the harm that occurred in the forum.
IV.
For the reasons stated above, we conclude that
Defendants “purposefully directed” their operation of
ThisAV.com at viewers in the United States. We
REVERSE, and REMAND to the district court to conduct
the remainder of the personal jurisdiction analysis under
Rule 4(k).