40 F.4th 1034
9th Cir.2022Background
- Lang Van (California music publisher) sued VNG (Vietnamese company) for copyright infringement over music made available on VNG’s Zing MP3 service and mobile apps.
- VNG released Zing MP3 in U.S. app stores (iOS 2011, Android 2012), submitted English screenshots to the USPTO, and obtained U.S. trademark protection.
- Discovery (including subpoenas to Apple/Google and VNG depositions) showed VNG uploaded many Lang Van songs, did not geoblock U.S. users, ran geotargeted ads, and had hundreds of thousands of U.S. downloads. VNG admitted providing Lang Van songs on Zing MP3.
- District court initially dismissed for lack of personal jurisdiction; Ninth Circuit remanded to allow jurisdictional discovery. On remand the district court again dismissed under a California-focused test (Walden).
- The appellate court analyzed jurisdiction under Fed. R. Civ. P. 4(k)(2), concluded VNG purposefully directed activities at the United States, rejected forum non conveniens for Vietnam, and reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal jurisdiction under Rule 4(k)(2) | VNG’s U.S.-directed contacts (apps in U.S. stores, uploads of Lang Van content, U.S. downloads, USPTO filings, ads) support nationwide contacts | VNG lacks meaningful U.S. contacts; primary market was Vietnam; low percentage of U.S. sessions | Court: Rule 4(k)(2) satisfied; plaintiff met prima facie showing; jurisdiction reasonable |
| Purposeful direction / Calder effects test | VNG intentionally uploaded and distributed Lang Van content to U.S. users, did not geoblock, and contracted with U.S. businesses | Posting online is not enough; need more than foreseeability or incidental U.S. access | Court: purposeful direction found (uploads, English materials, no geoblocking, admissions, U.S. business contacts) |
| Proper framework: Walden (forum-focused) vs. Rule 4(k)(2) (nationwide) | Must consider aggregate U.S. contacts under Rule 4(k)(2) because VNG is not amenable to any single state’s courts | Court should evaluate California-focused contacts under Walden | Court: Rule 4(k)(2) analysis required and applied; reviewing contacts with the U.S. as a whole |
| Forum non conveniens (Vietnam) | U.S. is appropriate forum given plaintiff’s U.S. domicile and U.S. copyright interests | Vietnam is more convenient (witnesses, evidence, local law) | Court: rejected dismissal on forum non conveniens grounds; U.S. forum appropriate for U.S. copyright claims |
Key Cases Cited
- Walden v. Fiore, 571 U.S. 277 (2014) (defendant’s contacts must be tied to the forum in a meaningful way)
- Calder v. Jones, 465 U.S. 783 (1984) (effects test: intentional act aimed at forum causing harm known to be suffered there)
- Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945) (minimum contacts and fair play due process standard)
- Pebble Beach Co. v. Caddy, 453 F.3d 1151 (9th Cir. 2006) (Rule 4(k)(2) analyzes contacts with the nation as a whole)
- Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450 (9th Cir. 2007) (Rule 4(k)(2) jurisdiction when defendant not subject to any state’s general jurisdiction)
- AMA Multimedia, LLC v. Wanat, 970 F.3d 1201 (9th Cir. 2020) (interactive-website jurisdiction analysis; distinguished here)
- Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064 (9th Cir. 2017) (Calder effects test in copyright context)
- ISI Int’l, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548 (7th Cir. 2001) (background on Rule 4(k)(2) application)
- Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97 (1987) (rationale for national-jurisdiction rules)
- Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) (fair warning and purposeful availment principles)