Carsey-Werner V BBC MTD Opposition

Case 2:17-cv-08041-PA-AS Document 39 Filed 02/05/18 Page 1 of 41 Page ID #:280
RUFUS-ISAACS ACLAND & GRANTHAM LLP

1 ALEXANDER RUFUS-ISAACS, State Bar No. 135747
aisaacs@rufuslaw.com
2 PAUL D. SUPNIK, State Bar No. 52842
psupnik@rufuslaw.com
3 232 N. Canon Drive
Beverly Hills, California 90210
4 Telephone: (310) 274-3803
Facsimile: (310) 860-2430
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Attorneys for Plaintiff THE CARSEY-
6 WERNER COMPANY, LLC
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
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R U F U S -I S A A C S A C L A N D &
Tel (310) 274-3803 • Fax (310) 860-2430
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BEVERLY HILLS, CALIFORNIA 90210
THE CARSEY-WERNER COMPANY, CASE No. 2:17-cv-8041-PA (ASx)

G R A NT H A M L L P
12 LLC, a California limited liability

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company, PLAINTIFF'S JOINT OPPOSITION

13 TO BBC'S AND SUGAR FILMS’
Plaintiff, MOTIONS TO DISMISS FOR
14 LACK OF PERSONAL
v. JURISDICTION AND/OR
15 IMPROPER VENUE UNDER
BRITISH BROADCASTING F.R.C.P. 12(B)(2) OR (3)
16 CORPORATION, a foreign
corporation; SUGAR FILMS Date: February 26, 2018
17 LIMITED, a foreign private limited Time: 1:30 pm
company, and DOES 1 through 10, Crtrm.: 9A, 9th Floor
18 inclusive, 350 West 1st Street
Los Angeles, CA 90012
19 Defendants.
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PLAINTIFF'S JOINT OPPOSITION TO MOTIONS TO DISMISS FOR LACK OF PERSONAL JURISDICTION
TABLE OF CONTENTS
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Page
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I. SUMMARY OF ARGUMENT ........................................................................ 1
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II. THE FACTS. ..................................................................................................... 2
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A. The Parties ............................................................................................... 2
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B. Defendants Travelled To Los Angeles For Principal Photography ........ 2
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C. Fall Has Over 25 Minutes of Interviews Conducted in Los
8 Angeles And Shows Many Famous Landmarks ..................................... 3
9 D. Defendants Knew That Carsey-Werner Is A California Company
Which Owned Copyrights Of The Infringed Materials .......................... 3
10
E. Many People In California Watched Fall Via The iPlayer .................... 4

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III. THIS COURT SHOULD EXERCISE SPECIFIC PERSONAL

12 JURISDICTION OVER DEFENDANTS ......................................................... 6

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13 A. Burden Of Proof ...................................................................................... 6

14 B. Nationwide Aggregation Of Contacts Is Permitted ................................ 6
15 C. Three-Part Test To Determine Minimum Contacts ................................ 6
16 1. “Purposeful Direction” Requirement............................................ 7
17 (a) Defendants Have Acted Intentionally. ............................... 7
18 (b) Defendants’ Acts Were Expressly Aimed At
California. ........................................................................... 7
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(c) Harm. ................................................................................ 10
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2. “Arising Out Of” Requirement ................................................... 10
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3. “Reasonableness” Requirement .................................................. 12
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(a) The Extent Of Defendant's “Purposeful” Interjection...... 12
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(b) The Burden On Defendant In Defending In The
24 Forum ............................................................................... 13
25 (c) The Extent Of Conflict With The Sovereignty Of
The Defendant's State ....................................................... 13
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(d) Forum State's Interest In Adjudicating Dispute ............... 13
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(e) Most Efficient Judicial Resolution Of The
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Controversy ...................................................................... 14
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(f) The Importance Of The Forum To Plaintiff's
2 Interest In Convenient And Effective Relief .................... 14
3 (g) The Importance Of The Forum To Plaintiff's
Interest In Convenient And Effective Relief .................... 14
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(h) The Existence Of An Alternative Forum. ........................ 14
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IV. THIS DISTRICT IS A PROPER VENUE ...................................................... 15
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V. CONCLUSION ............................................................................................... 15
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TABLE OF AUTHORITIES
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Page
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FEDERAL CASES
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Cas. Assur. Risk Ins. Brokerage Co. v. Dillon, 976 F.2d 596, 599 (9th Cir.
4 1992) .................................................................................................................. 9
5 In re Volkswagen of America, Inc. (5th Cir. 2008) 545 F.3d 304, 312-313.............. 15
6 Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1322 (9th Cir. 1998.) ................. 11
7 Columbia Pictures Television v. Krypton Broadcasting of Birmingham, Inc.,
106 F.3d 284, 289 (9th Cir. 1997) ..................................................................... 8
8
ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707, 713 (4th
9 Cir.2002) .......................................................................................................... 10
10 Axiom Foods, Inc. v. Acerchem Int'l, Inc., supra, 874 F.3d at 1070............................ 9
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11 Burger King Corp. v. Rudzewicz (1985) 471 US 462, 476-477, 105 S.Ct. 2174 ...... 12
12 Burger King Corp., supra, 471 US at 473 ................................................................. 13

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14 Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L.Ed. 2d 804 (1984), ................. 7
15 Carnival Cruise Lines, Inc. v. Shute (1991) 499 US 585, 589, 111 S.Ct. 1522,
1525 ................................................................................................................. 10
16
Chew v. Dietrich (2nd Cir. 1998) 143 F.3d 24, 29 .................................................... 11
17
Axiom Foods, Inc. v. Acerchem Int'l, Inc., No. CV 15-870 PA (AJWX), 2015
18 WL 12658234 (C.D. Cal. Sept. 11, 2015), aff'd, 874 F.3d 1064 (9th Cir.
2017). ................................................................................................................. 8
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Doe v. National Medical Services (10th Cir. 1992) 974 F2d 143, 145 ..................... 10
20
Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002.) .................................. 7
21
Ford Motor Co. v. Summit Motor Prod., Inc., 930 F.2d 277, 299–300 (3d Cir.
22 1991.) ............................................................................................................... 14
23 Hit Bound Music Ltd., v. BBC Films et al., 2:16-cv-7125 CBM (KSx).................... 10
24 Quokka Sports, Inc. v. Cup Int'l Ltd., 99 F.Supp.2d 1105, 1110–11
(N.D.Cal.1999.) ................................................................................................. 6
25
Rano v. Sipa Press, Inc., 987 F.2d 580, 587 (9th Cir. 1993),...................................... 9
26
RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272 (7th Cir. 1997), ............................. 11
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Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) ........ 6
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Schwarzenegger, supra, 374 F.3d at 806 .................................................................... 7

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Sher v. Johnson (9th Cir. 1990) 911 F2d 1357, 1365................................................ 13
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Walden v. Fiore, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014)........................................... 8
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Walden, 134 S.Ct. at 1121 ........................................................................................... 9
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Washington Shoe Co. v. A-Z Sporting Goods, Inc., 704 F.3d 668, 678-79 (9th
5 Cir. 2012) ........................................................................................................... 7
6 Yahoo! Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, 433 F.3d
1199, 1207 (9th Cir.2007.) .............................................................................. 11
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8 FEDERAL STATUTES
9 17 U.S.C. § 106(3) ..................................................................................................... 14
10 28 USC § 1391(b)(3). ................................................................................................ 15
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11 28 USC § 1391(c)(2). ................................................................................................ 15

12 Cas. Assur. Risk Ins. Brokerage Co. v. Dillon, 976 F.2d 596, 599 (9th Cir.
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1992) .................................................................................................................. 9
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14 TREATISES
15 Rutter Group Prac. Guide Fed. Civ. Pro. Before Trial Ch. 3-E, §3:139.6. ............... 11
16 Rutter Group Practice Guide on Federal Civil Procedure Before Trial (9th
Circuit Ed.) §3:208.1 ......................................................................................... 8
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1 I. SUMMARY OF ARGUMENT
2 The Motions To Dismiss For Lack Of Personal Jurisdiction And/Or Improper
3 Venue filed by defendants British Broadcasting Corporation (“BBC”) and Sugar
4 Films Limited (jointly, “Motions”) establish that most of the jurisdictional facts
5 alleged in the First Amended Complaint (“Complaint”) are undisputed. Of great
6 significance, the Motions concede that Defendants travelled to Los Angeles and 3
7 other US cities to shoot principal photography for Fall. Further, they do not deny
8 that they knew that the materials from The Cosby Show which they incorporated
9 into Fall belonged to Carsey-Werner, and that Carsey-Werner is based in California.
10 These facts provide a strong basis for denying the Motions. The court should
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11 find that Defendants purposefully directed their activities at California, in that (i)
12 their actions were intentional, (ii) they knew that Carsey-Werner was based in
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13 California, (iii) they knew that Carsey-Werner owned the copyrights to The Cosby
14 Show, (iv) they created their own direct contacts with the jurisdiction by travelling
15 to Los Angeles to film Fall, and (v) it is not unreasonable to require them to defend
16 this case in Los Angeles because they travelled here to film Fall, because BBC has
17 an office here, and because BBC has filed at least 2 lawsuits here. The program
18 itself, which lasts 59 minutes 30 seconds, has over 25 minutes of interviews
19 conducted in Los Angeles County, and features numerous locations in the county.
20 Further, about 65 million people regularly access the BBC iPlayer website
21 from outside the UK. Fall is a heavily California-centric program which the BBC
22 made available on the iPlayer and was watched by many persons located in
23 USA/California. This constitutes a distribution of an infringing work and provides
24 another reason why it is not unreasonable to require Defendants to litigate here.
25 Carsey Warner does not claim that either Defendant is subject to general
26 jurisdiction in California but urges the court to find that it has specific personal
27 jurisdiction over them both, and to reject arguments that this is an improper venue.
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1 II. THE FACTS.

2 A. The Parties
3 Carsey-Werner is a famous television production company based in Encino,
4 California. One of its hit shows was The Cosby Show starring Bill Cosby. (Norma
5 Acland’s Declaration in support of this Opposition (“Acland Decl.”) ¶2.) It has
6 licensed several of its shows to the BBC in the past. (Id., ¶¶3, 4; Exhs. 7, 8, 9.)
7 BBC broadcasts its programs on television channels in the United Kingdom,
8 and streams programs online via its iPlayer website. It has an office in Los Angeles
9 with 8 staff. (Lyndsey North’s Declaration in support of BBC Motion, ¶3.) It is no
10 stranger to litigating in this District. In 2014, it initiated a lawsuit entitled British
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11 Broadcasting Corporation, et al., v Scott Stander & Associates, Inc., et al., Case No.
12 CV 14–8047 FMO (Ex), seeking damages for trademark infringement and unfair
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13 competition under federal and California law based on lost sales and business
14 opportunities. (Request for Judicial Notice, Exh. 1.) And in 2016, it filed another
15 lawsuit in this District, entitled British Broadcasting Corporation, et al., v Scott
16 Stander et al., Case No. CV 16-1935 FMO (Ex), seeking similar relief. (Id. Exh. 2.)
17 Sugar Films is a UK company which produces television programs. In 2017,
18 it produced a program for the BBC for commercial purposes entitled Bill Cosby –
19 Fall of an American Icon (“Fall”), which included 8 audiovisual clips and 2 music
20 cues (the “Infringed Works”) from The Cosby Show. (Motions, 1:16-17.) Carsey-
21 Werner’s permission for such use was neither sought nor given. (Acland Decl., ¶5.)
22 B. Defendants Travelled To Los Angeles For Principal Photography
23 Principal photography of Fall took place in four US cities, one of which was
24 Los Angeles. (Patrick Younge’s Declaration in support of BBC Motion (“Younge
25 Decl.”), ¶6.) As the producer, Sugar Films was responsible for the filming in Los
26 Angeles and the other 3 cities, but BBC actively assisted in and encouraged the
27 filming by approving the budget, which must have included travel and filming costs,
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1 and by financing the production. (Complaint, ¶11 – uncontroverted.) Fall’s end

2 credits name Jamie Balmint as the “Executive Producer for the BBC,” and the final
3 frame states “Sugar Films for the BBC.” (DVD – Exh. 3.)
4 C. Fall Has Over 25 Minutes of Interviews Conducted in Los Angeles
5 And Shows Many Famous Landmarks
6 Fall, which lasts 59 minutes 30 seconds, contains numerous interviews, 6 of
7 which appear to have been filmed in Los Angeles County, namely, with Lili
8 Bernard, Victoria Valentino and Beth Ferrier (three of the main accusers), attorney
9 Gloria Allred, Jennifer Lee Pryor (Richard Pryor’s widow), and Joseph C. Phillips
10 (an actor). (Complaint, ¶11, fn. 2 – uncontroverted; Alexander Rufus-Isaacs’
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11 Declaration in support of this Opposition (“ARI Decl.”), ¶2(a)-(f), and DVD of Fall
12 (Exh. 3).) These interviews account for over 25 minutes of the program, i.e., almost
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13 half. (Id).) In addition, Fall has footage of several iconic locations in Los Angeles
14 County, such as Sunset Boulevard, West Hollywood, downtown, Malibu, and the
15 Hollywood Sign. (ARI Decl., ¶2(g).)
17 Which Owned Copyrights Of The Infringed Materials
18 The following undisputed facts show that Defendants knew that Carsey-
19 Werner was based in California, and owned the copyrights to The Cosby Show:
20 (a) Carsey-Werner has licensed several of its shows to the BBC and has
21 communicated with BBC about other matters. (Acland Decl., ¶¶3, 4; Exhs. 7, 8, 9.)
22 Defendants were therefore well aware that it is based in Los Angeles County.
23 (b) Sugar Films bought a DVD of the second season of The Cosby Show and
24 ripped the Infringed Works off that DVD. (Younge Decl., ¶7.) The copyright notice
25 on the DVD’s packaging identified Carsey-Werner as the copyright owner and
26 identified the distributor in California. (Acland Decl., ¶6, Exh. 10.)
27 (c) Whenever one of the Clips appears in Fall, a caption appears on the
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1 screen, reading “The Cosby Show - Carsey-Werner Company/Bill Cosby.” (DVD -

2 Exh. 3; Complaint, ¶14(a) – uncontroverted; ARI Decl., ¶2(h).)
3 (d) On June 5, 2017, the same day that Fall was first broadcast, Carsey-
4 Werner sent a notice to BBC, and on June 6, 2017, it emailed the same message to
5 Sugar Films. Both stated that Fall contains materials from The Cosby Show, which
6 is owned by Carsey-Werner and demanded that Fall should not be rebroadcast.
7 (Acland Decl., ¶7, Exhs. 11 and 12 (p. 3).) On June 12, 2017, Defendants responded
8 separately, denying liability. (Id., ¶8, Exhs. 12 (p. 1), 13.)
9 (e) Despite being put on notice on June 5, 2017, that Fall contained materials
10 that infringed Carsey-Werner’s copyrights, BBC broadcast the program again on
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11 June 7, 2017, and made it available for viewing on the iPlayer for the next 30 days.
12 (Clive Illenden’s Declaration in support of BBC’s Motion, ¶¶8, 9.)

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13 (f) On June 20, 2017, Carsey-Werner sent Sugar Films a letter, again asserting
14 infringement of its copyrights and demanding that Sugar Films pay a license fee for
15 the Infringed Works. Sugar Films refused to do so. (Acland Decl., ¶9, Exh. 14.)
16 E. Many People In California Watched Fall Via The iPlayer
17 Fall was broadcast on BBC2 in the UK on June 5 and 7, 2017, and was made
18 available online via the iPlayer from June 5 to July 5, 2017. (Illenden Decl., ¶9.)
19 BBC contends that it was not distributed outside the UK, and that geo-blocking was
20 used to stop people in other countries from accessing it via the iPlayer. But its
21 Software Engineering Manager concedes that geo-blocking only “hinders” people
22 based overseas who use virtual private network (VPN) services to watch the iPlayer,
23 and that BBC can only make “attempts to limit the availability of” such content.
24 (Mark Gledhill’s Declaration in support of BBC Motion, ¶8 – p. 3:13; ¶10.)
25 The limited effect of geo-blocking is shown by an article that BBC posted on
26 its own website at http://www.bbc.co.uk/news/entertainment-arts-33620341 on July
27 22, 2015, (“Article”) which states that at least 65 million people outside the UK
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1 were regularly accessing the iPlayer using VPN’s which allow users to access
2 websites without disclosing their location. (ARI Decl., Exh. 4.) The Article refers to
3 a report by GlobalWebIndex (“Report”) which surveyed more than 45,000 internet
4 users across 34 countries including the USA and estimated that 65 million people
5 regularly watch the iPlayer from outside of the UK by using VPNs. It states that
6 BBC's iPlayer figures revealed 222 million requests for TV programmes in May
7 2015, which means that “GlobalWebIndex figures would suggest that 29% of these
8 requests may have come from TV viewers outside of the UK." In June and July
9 2017, BBC's iPlayer figures revealed even larger numbers of requests for TV
10 programmes: 256 million in June and 236 million in July (Exhs. 5 and 6, p. 2.)
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11 Especially given the increased use of VPN’s, it would be reasonable to infer that
12 even more people were watching the iPlayer from outside the UK in these 2 months.
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13 BBC Director Neelay Patel admits that BBC was aware of the Report
14 (without naming it) and contests its findings, but only in the most conclusory
15 manner. (Neelay Patel’s Declaration in support of BBC Motion (“Patel Decl.”), ¶3.)
16 BBC has produced no admissible evidence challenging the Report’s contents or the
17 Complaint’s allegations. (Complaint, ¶13.) See Evidentiary Objections.
18 Because VPNs disguise the viewer’s location, it is impossible to determine
19 how many people in the USA or California viewed Fall via the iPlayer, but Carsey-
20 Werner’s General Counsel, Norma Acland, was one of them. (Acland Decl., ¶10.)
21 Given that BBC’s geo-blocking efforts were only partially effective, that around
22 29% of the iPlayer viewers were outside the UK, and that Fall concerns events
23 which occurred in the USA/California, it is reasonable to infer that Fall was
24 watched by many other individuals located in USA/California.
25 Sugar Films knew that Fall would be distributed over the iPlayer because it
26 entered into a distribution contract with BBC. (Younge Decl., ¶5.)
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1 III. THIS COURT SHOULD EXERCISE SPECIFIC PERSONAL

2 JURISDICTION OVER DEFENDANTS
3 A. Burden Of Proof
4 As plaintiff, Carsey-Werner bears the burden of establishing personal
5 jurisdiction. But “[w]here, as here, the motion is based on written materials rather
6 than an evidentiary hearing, ‘the plaintiff need only make a prima facie showing of
7 jurisdictional facts.’” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800
8 (9th Cir. 2004). In such cases, “we only inquire into whether [the plaintiff's]
9 pleadings and affidavits make a prima facie showing of personal jurisdiction.” Id.
10 Although the plaintiff cannot “simply rest on the bare allegations of its complaint,”
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11 uncontroverted allegations in the complaint must be taken as true. Id. Conflicts over
12 statements contained in affidavits must be resolved in the plaintiff's favor. Id.

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13 B. Nationwide Aggregation Of Contacts Is Permitted

14 If, arguendo, either Defendant’s contacts with California alone are
15 insufficient to create jurisdiction, Rule 4(k)(2) of the Federal Rules of Civil
16 Procedure permits nationwide aggregation for cases arising under federal law such
17 as the Copyright Act, unless 1) the defendant is subject to jurisdiction of the courts
18 of general jurisdiction of any state, or 2) aggregation is expressly forbidden by the
19 relevant law. Quokka Sports, Inc. v. Cup Int'l Ltd., 99 F.Supp.2d 1105, 1110–11
20 (N.D.Cal.1999.) No claim of general jurisdiction is made and aggregation is not
21 forbidden. Thus, for jurisdictional purposes, the Court should take all of Defendants’
22 nationwide contacts into consideration, not just their contacts with California.
23 C. Three-Part Test To Determine Minimum Contacts
24 There is a three-part test to determine if a defendant has sufficient minimum
25 contacts to be subject to specific personal jurisdiction:
26 1) The out-of-state defendant purposefully directed its activities toward
27 residents of the forum state or otherwise established contacts with that state;
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1 2) Plaintiff’s cause of action arises out of or results from defendant’s

2 forum-related contacts; and
3 3) The forum’s exercise of personal jurisdiction in the particular case must
4 be reasonable.
5 1. “Purposeful Direction” Requirement
6 Since this is a tort case within the Ninth Circuit, the “purposeful direction”
7 test applies. It uses the “effects” test derived from Calder v. Jones, 465 U.S. 783,
8 104 S. Ct. 1482, 79 L.Ed. 2d 804 (1984), which requires “that the defendant
9 allegedly have (1) committed an intentional act, (2) expressly aimed at the forum
10 state, (3) causing harm that the defendant knows is likely to be suffered in the forum
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11 state.” Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002.)
12 (a) Defendants Have Acted Intentionally.

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13 Defendants’ conduct in ripping the Infringed Works off the DVD and editing
14 them into Fall, in travelling to Los Angeles to film interviews and locations, and in
15 approving the budget and financing the production, all constitute “intentional acts”
16 for purposes of the effects test. Schwarzenegger, supra, 374 F.3d at 806 (“We
17 construe ‘intent’ in the context of the ‘intentional act’ test as referring to an intent to
18 perform an actual, physical act in the real world, rather than an intent to accomplish
19 a result or consequence of that act.”)
20 (b) Defendants’ Acts Were Expressly Aimed At California.
21 In Washington Shoe Co. v. A-Z Sporting Goods, Inc., 704 F.3d 668, 678-79
22 (9th Cir. 2012) the Ninth Circuit explained that the “express aiming” requirement is
23 satisfied, and specific jurisdiction exists, when the defendant engaged in wrongful
24 conduct targeted at a plaintiff whom the defendant knows to be a resident of the
25 forum state. “Particularly in the case of a willful copyright infringement, the
26 intentional act constituting the violation may occur solely within one state while the
27 known impact of that copyright infringement is directed at another state.” Id.
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1 The current case also involves willful copyright infringement, as did Axiom
2 Foods, Inc. v. Acerchem Int'l, Inc., No. CV 15-870 PA (AJWX), 2015 WL
3 12658234 (C.D. Cal. Sept. 11, 2015), aff'd, 874 F.3d 1064 (9th Cir. 2017). In that
4 case, the Court referred to Washington Shoe Co., and a number of other cases cited
5 by the plaintiffs for the proposition that intentional infringement of the copyright of
6 a plaintiff known to reside or do business in the forum state is itself sufficient to
7 confer jurisdiction, e.g., Columbia Pictures Television v. Krypton Broadcasting of
8 Birmingham, Inc., 106 F.3d 284, 289 (9th Cir. 1997) (“Columbia alleged, and the
9 district court found, that Feltner willfully infringed copyrights owned by Columbia,
10 which, as Feltner knew, had its principal place of business in the Central District.
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11 This fact alone is sufficient to satisfy the ‘purposeful availment’ requirement.”)

12 The jurisdictional motion in Axiom Foods was granted because there was no
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13 evidence that the defendants in that case knew that the copyrighted material
14 belonged to plaintiffs, whereas in the present case, Defendants clearly knew that the
15 Infringed Materials belonged to Carsey-Werner, and that Carsey-Werner was based
16 in California. (See Section II(C) above.) These facts alone suffice to create specific
17 personal jurisdiction. As the editors of the Rutter Group Practice Guide on Federal
18 Civil Procedure Before Trial (9th Circuit Ed.) observe at §3:208.1, “If a defendant is
19 alleged to have willfully infringed plaintiff's copyright with knowledge of both the
20 existence of the copyright and the forum of the copyright holder, jurisdiction
21 generally will be upheld since the “individualized targeting” establishes the
22 “something more” necessary to satisfy the express aiming requirement...”
23 Walden v. Fiore, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014) discussed another
24 requirement, namely that “the plaintiff cannot be the only link between the
25 defendant and the forum. Rather, it is the defendant's conduct that must form the
26 necessary connection with the forum State that is the basis for its jurisdiction over
27 him.” Id., 134 S. Ct. at 1122. This requirement is easily satisfied in this case by the
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1 trip to Los Angeles and the other 3 US cities to conduct principal photography,
2 which represents a substantial connection with California. Sugar Films, as the
3 producer, was responsible for the filming in Los Angeles, and BBC actively assisted
4 by approving the budget which must have included travel and filming costs, and by
5 financing the production, (Complaint, ¶11 – uncontroverted.)
6 Contrast such a strong connection with the forum state with the facts of
7 Walden, where 2 airline passengers sued a police officer for violating their Fourth
8 Amendment rights by seizing cash from them in Georgia during their return trip to
9 Nevada. The officer had no connection with Nevada, and therefore it is not
10 surprising that the Nevada courts were not entitled to exercise jurisdiction over him.
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11 Similarly, in the Axiom appeal, the Ninth Circuit concluded that defendant’s
12 “suit-related conduct” did not “create a substantial connection with [California].”

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13 Axiom Foods, Inc. v. Acerchem Int'l, Inc., supra, 874 F.3d at 1070 (citing Walden,
14 134 S.Ct. at 1121). Unlike Defendants in this case, Acerchem UK never physically
15 came to California, and its sole connection to California was that it sent no more
16 than ten of its newsletters to recipients who were physically located in California.
17 Not surprisingly, this connection was found to be too tenuous to create jurisdiction.
18 The cases cited in the Motion are also easily distinguishable. Cas. Assur. Risk
19 Ins. Brokerage Co. v. Dillon, 976 F.2d 596, 599 (9th Cir. 1992), is a defamation
20 case in which the court rejected plaintiff's contention that its incorporation in Guam,
21 alone, satisfied the effects test. It noted that the letter was never sent to Guam, and
22 that the plaintiff did not conduct any business at all in Guam. The brunt of the injury
23 was not considered to fall on Guam soil. That case has no similarities to this one.
24 In Rano v. Sipa Press, Inc., 987 F.2d 580, 587 (9th Cir. 1993), the Ninth
25 Circuit affirmed the dismissal of a claim against a defendant because it found it
26 lacked personal jurisdiction over him. He was a citizen of Turkey and a long-time
27 resident of France. His ties to California include three short visits to California in
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1 the last seven years, totaling six days. None of his visits to California involved
2 plaintiff or his photographs. Again, the case has no similarities to the present case.
3 And ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707, 713
4 (4th Cir.2002) addressed “whether a person electronically transmitting or enabling
5 the transmission of information via the Internet to Maryland, causing injury there,
6 subjects the person to the jurisdiction of a court in Maryland.” Again, the case has
7 no similarities to the present case.
8 Likewise, in the recent case in which a BBC entity prevailed on a
9 jurisdictional motion, Hit Bound Music Ltd., v. BBC Films et al., 2:16-cv-7125
10 CBM (KSx), the facts are entirely different. Plaintiff was a Canadian composer who
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11 sued BBC Films (a different BBC entity) and others over their use of his
12 compositions in a film shot in France. Plaintiff sought jurisdiction based on BBC

232 N. CANON DRIVE
13 Films’ contacts with California, but these were very tenuous, and the court found no
14 evidence that BBC Films’ conduct had been expressly aimed at California.
15 (c) Harm.
16 Carsey-Werner suffered harm in California because its copyrighted material
17 was taken without its consent and without payment, and it therefore lost license fees.
18 In addition, it lost control of its copyrighted property. (Acland Decl., ¶11.)
19 2. “Arising Out Of” Requirement
20 “Limited jurisdiction” means jurisdiction is limited to causes of action arising
21 out of or related to the nonresident's forum-related activities. Doe v. National
22 Medical Services (10th Cir. 1992) 974 F2d 143, 145. Although “arising out of” and
23 “related to” are alternative tests, the Supreme Court has not yet decided what
24 constitutes sufficient “relatedness” for specific jurisdiction. Carnival Cruise Lines,
25 Inc. v. Shute (1991) 499 US 585, 589, 111 S.Ct. 1522, 1525. The “relatedness” test
26 is merely part of a general inquiry to determine whether the exercise of personal
27 jurisdiction in a particular case offends “traditional notions of fair play and
28
8442.11.3.3 10
1 substantial justice.” [Rutter Group Prac. Guide Fed. Civ. Pro. Before Trial Ch. 3-E,
2 §3:139.6.] Thus, where defendant has had only limited contacts with the state, “it
3 may be appropriate” to require a showing that plaintiff's injury was proximately
4 caused by those contacts. Id. But where defendant's contacts with the jurisdiction are
5 more substantial, “it is not unreasonable” to hold the defendant subject to personal
6 jurisdiction even though the acts within the state are not the proximate cause of
7 plaintiff's injury. Chew v. Dietrich (2nd Cir. 1998) 143 F.3d 24, 29.
8 Defendants appear to argue that because they did not commit copyright
9 infringement on their trip to Los Angeles to film interviews and locations, the trip is
10 not relevant for jurisdictional purposes.1 But in determining the propriety of the
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11 exercise of personal jurisdiction, a court “must evaluate all of a defendant's contacts

12 with the forum state, whether or not those contacts involve wrongful activity by the
232 N. CANON DRIVE
13 defendant.” (Emphasis added.) Yahoo! Inc. v. La Ligue Contre Le Racisme et

14 L'Antisemitisme, 433 F.3d 1199, 1207 (9th Cir.2007.) “In a specific jurisdiction
15 inquiry, we consider the extent of the defendant's contacts with the forum and the
16 degree to which the plaintiff's suit is related to those contacts. A strong showing on
17 one axis will permit a lesser showing on the other.” (Emphasis added.) Id. at 1210.
18 Lastly, the “but for” test used by some courts asks if the plaintiff would not
19 have been injured “but for” the defendant's activities. Panavision Int'l, L.P. v.
20 Toeppen, 141 F.3d 1316, 1322 (9th Cir. 1998.) This test is satisfied because if
21 Defendants had not made Fall, Carsey-Werner would not have been injured.
22
23
24 1
The Motions cite Doe v. Nat'l Med. Servs., supra, and RAR, Inc. v. Turner Diesel,
25 Ltd., 107 F.3d 1272 (7th Cir. 1997), as authorities for this proposition, but Doe
involved a discharged hospital employee who sued Pennsylvania testing laboratory
26 alleging negligence in performing tests on urine sample, and RAR was a breach of
27 contract case. Neither has any application to the present case.
28
8442.11.3.3 11
1 3. “Reasonableness” Requirement
2 The third “reasonableness” prong, on which Defendants bear the burden of
3 proof, is only satisfied when the following 7 factors weigh in favor of the exercise of
4 jurisdiction over a nonresident defendant. Burger King Corp. v. Rudzewicz (1985)
5 471 US 462, 476-477, 105 S.Ct. 2174.
6 (a) The Extent Of Defendant's “Purposeful” Interjection
7 The stronger the plaintiff's showing of purposeful availment and relatedness
8 to forum-related acts, the more a defendant must show in terms of unreasonableness
9 to defeat jurisdiction. Burger King Corp., supra, 471 US at 477. An even greater
10 showing of unreasonableness is required to defeat jurisdiction where, as here,
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11 defendant directed its activities at a forum resident: “(W)here a defendant who

12 purposefully has directed his activities at forum residents seeks to defeat

232 N. CANON DRIVE
13 jurisdiction, he must present a compelling case that the presence of some other
14 considerations would render jurisdiction unreasonable.” Id. 471 US at 477.
15 Defendants in this case knew that Carsey-Werner was based in California, and that it
16 owned the copyrights to The Cosby Show. Further, they created their own direct
17 contacts with the jurisdiction by travelling to Los Angeles to film Fall. In addition,
18 BBC decided to distribute Fall via the iPlayer. Since they knew that about 65
19 million people outside the UK watched the iPlayer regularly, and because they were
20 aware of the highly California-centric nature of Fall, the court should find that this
21 constitutes another basis for finding purposeful interjection into the forum state.2
22
2
23 The injection was purposeful because tort law ordinarily imputes to an actor the
intention to cause the natural and probable consequences of his conduct. DeVoto v.
24 Pacific Fidelity Life Ins. Co., 618 F.2d 1340, 1347 (9th Cir.1980) (citing
25 Restatement (Second) of Torts § 8A (1965): “Intent is not ... limited to
consequences which are desired. If the actor knows that the consequences are
26 certain, or substantially certain, to result from his act, and still goes ahead, he is
27 treated by the law as if he had in fact desired to produce the result.”)
28
8442.11.3.3 12
1 (b) The Burden On Defendant In Defending In The Forum

2 The mere fact that local litigation is inconvenient (or some other forum more
3 convenient) is not enough. Litigating locally must be so gravely difficult that it puts
4 Defendants at a severe disadvantage. Requiring the nonresident to defend locally is
5 not constitutionally unreasonable “in this era of fax machines and discount air
6 travel.” Sher v. Johnson (9th Cir. 1990) 911 F2d 1357, 1365. Since BBC filed the
7 Stander lawsuits in 2014 and 2016 in this district, it cannot be a burden for them to
8 defend this lawsuit in California. And since they sued for lost profits under
9 California law, they must be generating profits within California.3
10 (c) The Extent Of Conflict With The Sovereignty Of The
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11 Defendant's State
12 The UK has no interest in protecting its citizens who infringe a foreign

232 N. CANON DRIVE
13 entity’s copyrights, and distribute the program to residents of that state.

14 (d) Forum State's Interest In Adjudicating Dispute
15 The strength of California’s interest in the dispute is an important factor.
16 Burger King Corp., supra, 471 US at 473 (“(a) State generally has a ‘manifest
17 interest’ in providing its residents with a convenient forum for redressing injuries
18 inflicted by out-of-state actors.”) California has a substantial interest in adjudicating
19 this dispute because it has an interest in protecting one of its citizens from blatant
20 infringement by foreign entities which come to the state to make a film that had
21 many California features, and distribute the program to California residents.
22
3
23 The BBC Motion seeks to confuse the issue by asserting that a BBC subsidiary
owns “Dancing With The Stars.” Id. fn. 3, pp. 5-6. This is irrelevant. What counts is
24 that the defendant in this case, the BBC, was named as plaintiff in both the 2014 and
25 2016 actions. Both complaints allege that BBC owns common law and federal
trademarks (Exh. 1, ¶¶10, 31, 37; Exh. 2, ¶¶12, 24, 30), and that defendants caused
26 substantial injury to BBC, which seeks recovery of lost profits and other relief (Exh.
27 1, ¶¶35, 41, 47, 53; Exh. 2, ¶¶28, 34, 40, 46.)
28
8442.11.3.3 13
1 (e) Most Efficient Judicial Resolution Of The Controversy

2 Defendants argue (e.g., BBC Motion, 11:5-9; Sugar Films Motion, 8:28-9:4)
3 that the court should grant the Motions because only UK copyright law is involved,
4 and it would therefore be more appropriate for an English court to rule on its own
5 laws. This is incorrect. Defendants infringed US copyright laws by distributing Fall
6 via the iPlayer to California residents such as Ms. Acland,4 and even if, arguendo,
7 they did not, Carsey-Werner has a viable cause of action for common law
8 misappropriation which should be tried by a California court, not an English court.
9 (f) The Importance Of The Forum To Plaintiff's Interest
10 In Convenient And Effective Relief
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11 This Court would provide convenient and effective relief for Carsey-Werner
12 which does not want to litigate in England, which is a more expensive venue in
232 N. CANON DRIVE
13 which to litigate. (ARI Decl., ¶5.) Carsey-Werner offers to stipulate that if the
14 Motion is denied, it will take the depositions of UK-based witnesses in the UK.
15 (g) The Importance Of The Forum To Plaintiff's Interest
17 BBC argues that it would not be inconvenient for Carsey-Werner to litigate in
18 England because its counsel is also an English barrister. This is incorrect. Counsel
19 moved to California in 1987 and does not practice English law. (ARI Decl., ¶4.)
20 (h) The Existence Of An Alternative Forum.
21 The English courts do provide an alternative forum, albeit an inconvenient
22 and expensive one. Carsey Werner (which is, after all, the innocent victim of
23 Defendant’s willful infringement) should not be forced to litigate there.
24
25
4
A violation of 17 U.S.C. § 106(3) can occur when copies of a copyrighted work
26 are only distributed to one person. Ford Motor Co. v. Summit Motor Prod., Inc., 930
27 F.2d 277, 299–300 (3d Cir. 1991.)
28
8442.11.3.3 14
1 IV. THIS DISTRICT IS A PROPER VENUE

2 Corporations are “deemed to reside … in any judicial district in which such
3 defendant is subject to the court's personal jurisdiction with respect to the civil
4 action in question.” 28 USC § 1391(c)(2). Thus, in actions against a corporation,
5 venue is no longer a separate requirement. It is satisfied by proof that the corporate
6 defendant is subject to personal jurisdiction in the district. In re Volkswagen of
7 America, Inc. (5th Cir. 2008) 545 F.3d 304, 312-313. So, if the court accepts that it
8 has jurisdiction over Defendants, it need not consider venue. In any event, this court
9 is a proper venue because a substantial part of the events or omissions giving rise to
10 the claim, such as the trip to Los Angeles to film Fall, occurred in this District.
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11 Lastly, if there is no federal district in which the action “may otherwise be

12 brought,” the general venue statute contains a “fallback” provision (28 USC §
232 N. CANON DRIVE
13 1391(b)(3).) The rule is that when the other grounds for venue do not exist, venue
14 lies in a district in which any defendant is subject to the court's personal jurisdiction
15 with respect to the civil action in question.
16 V. CONCLUSION
17 For the reasons set forth above, Carsey-Werner respectfully requests that the
18 court denies both Motions. In the alternative, if the Court believes that there are
19 factual issues that would assist it in making a ruling, Carsey-Werner requests an
20 adjournment of this hearing in order to conduct discovery on those issues.
21
22 DATED: February 5, 2018 RUFUS-ISAACS ACLAND &
GRANTHAM LLP
23
24
25 By:
26 Alexander Rufus-Isaacs
28
8442.11.3.3 15
PROOF OF SERVICE
1
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
2
At the time of service, I was over 18 years of age and not a party to this
3 action. I am employed in the County of Los Angeles, State of California. My
business address is 232 N. Canon Drive, Beverly Hills, California 90210.
4
On February 5, 2018, I served true copies of the following document(s)
5 described as PLAINTIFF'S JOINT OPPOSITION TO BBC'S AND SUGAR
FILMS’ MOTIONS TO DISMISS FOR LACK OF PERSONAL
6 JURISDICTION AND/OR IMPROPER VENUE UNDER F.R.C.P. 12(B)(2)
OR (3) on the interested parties in this action as follows:
7
Louis P. Petrich
8 E-Mail: lpetrich@lpsla.com
Daniel M. Mayeda
9 E-Mail: dmayeda@lpsla.com
Elizabeth L. Schilken
10 E-Mail: eschilken@lpsla.com
Leopold, Petrich & Smith P.C.

Tel (310) 274-3803 • Fax (310) 860-2430
11 2049 Century Park East, Suite 3110

Los Angeles, Calif. 90067

12
232 N. CANON DRIVE
13 BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed

the document(s) with the Clerk of the Court by using the CM/ECF system.
14 Participants in the case who are registered CM/ECF users will be served by the
CM/ECF system. Participants in the case who are not registered CM/ECF users will
15 be served by mail or by other means permitted by the court rules.
16 I declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct and that I am employed in the office
17 of a member of the bar of this Court at whose direction the service was made.
18 Executed on February 5, 2018, at Beverly Hills, California.
19
20
Alexander Rufus-Isaacs
21
22
23
24
25
26
27
28
8442.11.3.3
TABLE OF CONTENTS
1
Page
2
3
I. SUMMARY OF ARGUMENT ........................................................................ 1
4
II. THE FACTS. ..................................................................................................... 2
5
A. The Parties ............................................................................................... 2
6
B. Defendants Travelled To Los Angeles For Principal Photography ........ 2
7
C. Fall Has Over 25 Minutes of Interviews Conducted in Los
8 Angeles And Shows Many Famous Landmarks ..................................... 3
Which Owned Copyrights Of The Infringed Materials .......................... 3
10
E. Many People In California Watched Fall Via The iPlayer .................... 4

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11
III. THIS COURT SHOULD EXERCISE SPECIFIC PERSONAL

12 JURISDICTION OVER DEFENDANTS ......................................................... 6

232 N. CANON DRIVE
13 A. Burden Of Proof ...................................................................................... 6

14 B. Nationwide Aggregation Of Contacts Is Permitted ................................ 6
15 C. Three-Part Test To Determine Minimum Contacts ................................ 6
16 1. “Purposeful Direction” Requirement............................................ 7
17 (a) Defendants Have Acted Intentionally. ............................... 7
18 (b) Defendants’ Acts Were Expressly Aimed At
California. ........................................................................... 7
19
(c) Harm. ................................................................................ 10
20
2. “Arising Out Of” Requirement ................................................... 10
21
3. “Reasonableness” Requirement .................................................. 12
22
(a) The Extent Of Defendant's “Purposeful” Interjection...... 12
23
(b) The Burden On Defendant In Defending In The
24 Forum ............................................................................... 13
25 (c) The Extent Of Conflict With The Sovereignty Of
The Defendant's State ....................................................... 13
26
(d) Forum State's Interest In Adjudicating Dispute ............... 13
27
(e) Most Efficient Judicial Resolution Of The
28
8442.11.3.3 i
Controversy ...................................................................... 14
1
(f) The Importance Of The Forum To Plaintiff's
2 Interest In Convenient And Effective Relief .................... 14
3 (g) The Importance Of The Forum To Plaintiff's
Interest In Convenient And Effective Relief .................... 14
4
(h) The Existence Of An Alternative Forum. ........................ 14
5
IV. THIS DISTRICT IS A PROPER VENUE ...................................................... 15
6
V. CONCLUSION ............................................................................................... 15
7
8
9
10
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11
12
232 N. CANON DRIVE
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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8442.11.3.3 ii
TABLE OF AUTHORITIES
1
Page
2
FEDERAL CASES
3
Cas. Assur. Risk Ins. Brokerage Co. v. Dillon, 976 F.2d 596, 599 (9th Cir.
4 1992) .................................................................................................................. 9
5 In re Volkswagen of America, Inc. (5th Cir. 2008) 545 F.3d 304, 312-313.............. 15
6 Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1322 (9th Cir. 1998.) ................. 11
7 Columbia Pictures Television v. Krypton Broadcasting of Birmingham, Inc.,
106 F.3d 284, 289 (9th Cir. 1997) ..................................................................... 8
8
ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707, 713 (4th
9 Cir.2002) .......................................................................................................... 10
10 Axiom Foods, Inc. v. Acerchem Int'l, Inc., supra, 874 F.3d at 1070............................ 9
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11 Burger King Corp. v. Rudzewicz (1985) 471 US 462, 476-477, 105 S.Ct. 2174 ...... 12

232 N. CANON DRIVE

14 Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L.Ed. 2d 804 (1984), ................. 7
15 Carnival Cruise Lines, Inc. v. Shute (1991) 499 US 585, 589, 111 S.Ct. 1522,
1525 ................................................................................................................. 10
16
Chew v. Dietrich (2nd Cir. 1998) 143 F.3d 24, 29 .................................................... 11
17
Axiom Foods, Inc. v. Acerchem Int'l, Inc., No. CV 15-870 PA (AJWX), 2015
18 WL 12658234 (C.D. Cal. Sept. 11, 2015), aff'd, 874 F.3d 1064 (9th Cir.
2017). ................................................................................................................. 8
19
Doe v. National Medical Services (10th Cir. 1992) 974 F2d 143, 145 ..................... 10
20
Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002.) .................................. 7
21
Ford Motor Co. v. Summit Motor Prod., Inc., 930 F.2d 277, 299–300 (3d Cir.
22 1991.) ............................................................................................................... 14
23 Hit Bound Music Ltd., v. BBC Films et al., 2:16-cv-7125 CBM (KSx).................... 10
24 Quokka Sports, Inc. v. Cup Int'l Ltd., 99 F.Supp.2d 1105, 1110–11
(N.D.Cal.1999.) ................................................................................................. 6
25
Rano v. Sipa Press, Inc., 987 F.2d 580, 587 (9th Cir. 1993),...................................... 9
26
RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272 (7th Cir. 1997), ............................. 11
27
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) ........ 6
28
8442.11.3.3 iii
Schwarzenegger, supra, 374 F.3d at 806 .................................................................... 7

1
Sher v. Johnson (9th Cir. 1990) 911 F2d 1357, 1365................................................ 13
2
Walden v. Fiore, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014)........................................... 8
3
Walden, 134 S.Ct. at 1121 ........................................................................................... 9
4
Washington Shoe Co. v. A-Z Sporting Goods, Inc., 704 F.3d 668, 678-79 (9th
5 Cir. 2012) ........................................................................................................... 7
6 Yahoo! Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, 433 F.3d
1199, 1207 (9th Cir.2007.) .............................................................................. 11
7
8 FEDERAL STATUTES
9 17 U.S.C. § 106(3) ..................................................................................................... 14
10 28 USC § 1391(b)(3). ................................................................................................ 15
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11 28 USC § 1391(c)(2). ................................................................................................ 15

12
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13
14 TREATISES
15 Rutter Group Prac. Guide Fed. Civ. Pro. Before Trial Ch. 3-E, §3:139.6. ............... 11
16 Rutter Group Practice Guide on Federal Civil Procedure Before Trial (9th
Circuit Ed.) §3:208.1 ......................................................................................... 8
17
18
19
20
21
22
23
24
25
26
27
28
8442.11.3.3 iv
1 I. SUMMARY OF ARGUMENT
2 The Motions To Dismiss For Lack Of Personal Jurisdiction And/Or Improper
3 Venue filed by defendants British Broadcasting Corporation (“BBC”) and Sugar
4 Films Limited (jointly, “Motions”) establish that most of the jurisdictional facts
5 alleged in the First Amended Complaint (“Complaint”) are undisputed. Of great
6 significance, the Motions concede that Defendants travelled to Los Angeles and 3
7 other US cities to shoot principal photography for Fall. Further, they do not deny
8 that they knew that the materials from The Cosby Show which they incorporated
9 into Fall belonged to Carsey-Werner, and that Carsey-Werner is based in California.
10 These facts provide a strong basis for denying the Motions. The court should
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11 find that Defendants purposefully directed their activities at California, in that (i)
12 their actions were intentional, (ii) they knew that Carsey-Werner was based in
232 N. CANON DRIVE
13 California, (iii) they knew that Carsey-Werner owned the copyrights to The Cosby
14 Show, (iv) they created their own direct contacts with the jurisdiction by travelling
15 to Los Angeles to film Fall, and (v) it is not unreasonable to require them to defend
16 this case in Los Angeles because they travelled here to film Fall, because BBC has
17 an office here, and because BBC has filed at least 2 lawsuits here. The program
18 itself, which lasts 59 minutes 30 seconds, has over 25 minutes of interviews
19 conducted in Los Angeles County, and features numerous locations in the county.
20 Further, about 65 million people regularly access the BBC iPlayer website
21 from outside the UK. Fall is a heavily California-centric program which the BBC
22 made available on the iPlayer and was watched by many persons located in
23 USA/California. This constitutes a distribution of an infringing work and provides
24 another reason why it is not unreasonable to require Defendants to litigate here.
25 Carsey Warner does not claim that either Defendant is subject to general
26 jurisdiction in California but urges the court to find that it has specific personal
27 jurisdiction over them both, and to reject arguments that this is an improper venue.
28
8442.11.3.3 1
1 II. THE FACTS.

2 A. The Parties
3 Carsey-Werner is a famous television production company based in Encino,
4 California. One of its hit shows was The Cosby Show starring Bill Cosby. (Norma
5 Acland’s Declaration in support of this Opposition (“Acland Decl.”) ¶2.) It has
6 licensed several of its shows to the BBC in the past. (Id., ¶¶3, 4; Exhs. 7, 8, 9.)
7 BBC broadcasts its programs on television channels in the United Kingdom,
8 and streams programs online via its iPlayer website. It has an office in Los Angeles
9 with 8 staff. (Lyndsey North’s Declaration in support of BBC Motion, ¶3.) It is no
10 stranger to litigating in this District. In 2014, it initiated a lawsuit entitled British
Tel (310) 274-3803 • Fax (310) 860-2430
11 Broadcasting Corporation, et al., v Scott Stander & Associates, Inc., et al., Case No.
12 CV 14–8047 FMO (Ex), seeking damages for trademark infringement and unfair
232 N. CANON DRIVE
13 competition under federal and California law based on lost sales and business
14 opportunities. (Request for Judicial Notice, Exh. 1.) And in 2016, it filed another
15 lawsuit in this District, entitled British Broadcasting Corporation, et al., v Scott
16 Stander et al., Case No. CV 16-1935 FMO (Ex), seeking similar relief. (Id. Exh. 2.)
17 Sugar Films is a UK company which produces television programs. In 2017,
18 it produced a program for the BBC for commercial purposes entitled Bill Cosby –
19 Fall of an American Icon (“Fall”), which included 8 audiovisual clips and 2 music
20 cues (the “Infringed Works”) from The Cosby Show. (Motions, 1:16-17.) Carsey-
21 Werner’s permission for such use was neither sought nor given. (Acland Decl., ¶5.)
22 B. Defendants Travelled To Los Angeles For Principal Photography
23 Principal photography of Fall took place in four US cities, one of which was
24 Los Angeles. (Patrick Younge’s Declaration in support of BBC Motion (“Younge
25 Decl.”), ¶6.) As the producer, Sugar Films was responsible for the filming in Los
26 Angeles and the other 3 cities, but BBC actively assisted in and encouraged the
27 filming by approving the budget, which must have included travel and filming costs,
28
8442.11.3.3 2
1 and by financing the production. (Complaint, ¶11 – uncontroverted.) Fall’s end

2 credits name Jamie Balmint as the “Executive Producer for the BBC,” and the final
3 frame states “Sugar Films for the BBC.” (DVD – Exh. 3.)
4 C. Fall Has Over 25 Minutes of Interviews Conducted in Los Angeles
5 And Shows Many Famous Landmarks
6 Fall, which lasts 59 minutes 30 seconds, contains numerous interviews, 6 of
7 which appear to have been filmed in Los Angeles County, namely, with Lili
8 Bernard, Victoria Valentino and Beth Ferrier (three of the main accusers), attorney
9 Gloria Allred, Jennifer Lee Pryor (Richard Pryor’s widow), and Joseph C. Phillips
10 (an actor). (Complaint, ¶11, fn. 2 – uncontroverted; Alexander Rufus-Isaacs’
Tel (310) 274-3803 • Fax (310) 860-2430
11 Declaration in support of this Opposition (“ARI Decl.”), ¶2(a)-(f), and DVD of Fall
12 (Exh. 3).) These interviews account for over 25 minutes of the program, i.e., almost
232 N. CANON DRIVE
13 half. (Id).) In addition, Fall has footage of several iconic locations in Los Angeles
14 County, such as Sunset Boulevard, West Hollywood, downtown, Malibu, and the
15 Hollywood Sign. (ARI Decl., ¶2(g).)
17 Which Owned Copyrights Of The Infringed Materials
18 The following undisputed facts show that Defendants knew that Carsey-
19 Werner was based in California, and owned the copyrights to The Cosby Show:
20 (a) Carsey-Werner has licensed several of its shows to the BBC and has
21 communicated with BBC about other matters. (Acland Decl., ¶¶3, 4; Exhs. 7, 8, 9.)
22 Defendants were therefore well aware that it is based in Los Angeles County.
23 (b) Sugar Films bought a DVD of the second season of The Cosby Show and
24 ripped the Infringed Works off that DVD. (Younge Decl., ¶7.) The copyright notice
25 on the DVD’s packaging identified Carsey-Werner as the copyright owner and
26 identified the distributor in California. (Acland Decl., ¶6, Exh. 10.)
27 (c) Whenever one of the Clips appears in Fall, a caption appears on the
28
8442.11.3.3 3
1 screen, reading “The Cosby Show - Carsey-Werner Company/Bill Cosby.” (DVD -

2 Exh. 3; Complaint, ¶14(a) – uncontroverted; ARI Decl., ¶2(h).)
3 (d) On June 5, 2017, the same day that Fall was first broadcast, Carsey-
4 Werner sent a notice to BBC, and on June 6, 2017, it emailed the same message to
5 Sugar Films. Both stated that Fall contains materials from The Cosby Show, which
6 is owned by Carsey-Werner and demanded that Fall should not be rebroadcast.
7 (Acland Decl., ¶7, Exhs. 11 and 12 (p. 3).) On June 12, 2017, Defendants responded
8 separately, denying liability. (Id., ¶8, Exhs. 12 (p. 1), 13.)
9 (e) Despite being put on notice on June 5, 2017, that Fall contained materials
10 that infringed Carsey-Werner’s copyrights, BBC broadcast the program again on
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11 June 7, 2017, and made it available for viewing on the iPlayer for the next 30 days.
12 (Clive Illenden’s Declaration in support of BBC’s Motion, ¶¶8, 9.)

232 N. CANON DRIVE
13 (f) On June 20, 2017, Carsey-Werner sent Sugar Films a letter, again asserting
14 infringement of its copyrights and demanding that Sugar Films pay a license fee for
15 the Infringed Works. Sugar Films refused to do so. (Acland Decl., ¶9, Exh. 14.)
16 E. Many People In California Watched Fall Via The iPlayer
17 Fall was broadcast on BBC2 in the UK on June 5 and 7, 2017, and was made
18 available online via the iPlayer from June 5 to July 5, 2017. (Illenden Decl., ¶9.)
19 BBC contends that it was not distributed outside the UK, and that geo-blocking was
20 used to stop people in other countries from accessing it via the iPlayer. But its
21 Software Engineering Manager concedes that geo-blocking only “hinders” people
22 based overseas who use virtual private network (VPN) services to watch the iPlayer,
23 and that BBC can only make “attempts to limit the availability of” such content.
24 (Mark Gledhill’s Declaration in support of BBC Motion, ¶8 – p. 3:13; ¶10.)
25 The limited effect of geo-blocking is shown by an article that BBC posted on
26 its own website at http://www.bbc.co.uk/news/entertainment-arts-33620341 on July
27 22, 2015, (“Article”) which states that at least 65 million people outside the UK
28
8442.11.3.3 4
1 were regularly accessing the iPlayer using VPN’s which allow users to access
2 websites without disclosing their location. (ARI Decl., Exh. 4.) The Article refers to
3 a report by GlobalWebIndex (“Report”) which surveyed more than 45,000 internet
4 users across 34 countries including the USA and estimated that 65 million people
5 regularly watch the iPlayer from outside of the UK by using VPNs. It states that
6 BBC's iPlayer figures revealed 222 million requests for TV programmes in May
7 2015, which means that “GlobalWebIndex figures would suggest that 29% of these
8 requests may have come from TV viewers outside of the UK." In June and July
9 2017, BBC's iPlayer figures revealed even larger numbers of requests for TV
10 programmes: 256 million in June and 236 million in July (Exhs. 5 and 6, p. 2.)
Tel (310) 274-3803 • Fax (310) 860-2430
11 Especially given the increased use of VPN’s, it would be reasonable to infer that
12 even more people were watching the iPlayer from outside the UK in these 2 months.
232 N. CANON DRIVE
13 BBC Director Neelay Patel admits that BBC was aware of the Report
14 (without naming it) and contests its findings, but only in the most conclusory
15 manner. (Neelay Patel’s Declaration in support of BBC Motion (“Patel Decl.”), ¶3.)
16 BBC has produced no admissible evidence challenging the Report’s contents or the
17 Complaint’s allegations. (Complaint, ¶13.) See Evidentiary Objections.
18 Because VPNs disguise the viewer’s location, it is impossible to determine
19 how many people in the USA or California viewed Fall via the iPlayer, but Carsey-
20 Werner’s General Counsel, Norma Acland, was one of them. (Acland Decl., ¶10.)
21 Given that BBC’s geo-blocking efforts were only partially effective, that around
22 29% of the iPlayer viewers were outside the UK, and that Fall concerns events
23 which occurred in the USA/California, it is reasonable to infer that Fall was
24 watched by many other individuals located in USA/California.
25 Sugar Films knew that Fall would be distributed over the iPlayer because it
26 entered into a distribution contract with BBC. (Younge Decl., ¶5.)
27
28
8442.11.3.3 5
1 III. THIS COURT SHOULD EXERCISE SPECIFIC PERSONAL

2 JURISDICTION OVER DEFENDANTS
3 A. Burden Of Proof
4 As plaintiff, Carsey-Werner bears the burden of establishing personal
5 jurisdiction. But “[w]here, as here, the motion is based on written materials rather
6 than an evidentiary hearing, ‘the plaintiff need only make a prima facie showing of
7 jurisdictional facts.’” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800
8 (9th Cir. 2004). In such cases, “we only inquire into whether [the plaintiff's]
9 pleadings and affidavits make a prima facie showing of personal jurisdiction.” Id.
10 Although the plaintiff cannot “simply rest on the bare allegations of its complaint,”
Tel (310) 274-3803 • Fax (310) 860-2430
11 uncontroverted allegations in the complaint must be taken as true. Id. Conflicts over
12 statements contained in affidavits must be resolved in the plaintiff's favor. Id.

232 N. CANON DRIVE
13 B. Nationwide Aggregation Of Contacts Is Permitted

14 If, arguendo, either Defendant’s contacts with California alone are
15 insufficient to create jurisdiction, Rule 4(k)(2) of the Federal Rules of Civil
16 Procedure permits nationwide aggregation for cases arising under federal law such
17 as the Copyright Act, unless 1) the defendant is subject to jurisdiction of the courts
18 of general jurisdiction of any state, or 2) aggregation is expressly forbidden by the
19 relevant law. Quokka Sports, Inc. v. Cup Int'l Ltd., 99 F.Supp.2d 1105, 1110–11
20 (N.D.Cal.1999.) No claim of general jurisdiction is made and aggregation is not
21 forbidden. Thus, for jurisdictional purposes, the Court should take all of Defendants’
22 nationwide contacts into consideration, not just their contacts with California.
23 C. Three-Part Test To Determine Minimum Contacts
24 There is a three-part test to determine if a defendant has sufficient minimum
25 contacts to be subject to specific personal jurisdiction:
26 1) The out-of-state defendant purposefully directed its activities toward
27 residents of the forum state or otherwise established contacts with that state;
28
8442.11.3.3 6
1 2) Plaintiff’s cause of action arises out of or results from defendant’s

2 forum-related contacts; and
3 3) The forum’s exercise of personal jurisdiction in the particular case must
4 be reasonable.
5 1. “Purposeful Direction” Requirement
6 Since this is a tort case within the Ninth Circuit, the “purposeful direction”
7 test applies. It uses the “effects” test derived from Calder v. Jones, 465 U.S. 783,
8 104 S. Ct. 1482, 79 L.Ed. 2d 804 (1984), which requires “that the defendant
9 allegedly have (1) committed an intentional act, (2) expressly aimed at the forum
10 state, (3) causing harm that the defendant knows is likely to be suffered in the forum
Tel (310) 274-3803 • Fax (310) 860-2430
11 state.” Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002.)
12 (a) Defendants Have Acted Intentionally.

232 N. CANON DRIVE
13 Defendants’ conduct in ripping the Infringed Works off the DVD and editing
14 them into Fall, in travelling to Los Angeles to film interviews and locations, and in
15 approving the budget and financing the production, all constitute “intentional acts”
16 for purposes of the effects test. Schwarzenegger, supra, 374 F.3d at 806 (“We
17 construe ‘intent’ in the context of the ‘intentional act’ test as referring to an intent to
18 perform an actual, physical act in the real world, rather than an intent to accomplish
19 a result or consequence of that act.”)
20 (b) Defendants’ Acts Were Expressly Aimed At California.
21 In Washington Shoe Co. v. A-Z Sporting Goods, Inc., 704 F.3d 668, 678-79
22 (9th Cir. 2012) the Ninth Circuit explained that the “express aiming” requirement is
23 satisfied, and specific jurisdiction exists, when the defendant engaged in wrongful
24 conduct targeted at a plaintiff whom the defendant knows to be a resident of the
25 forum state. “Particularly in the case of a willful copyright infringement, the
26 intentional act constituting the violation may occur solely within one state while the
27 known impact of that copyright infringement is directed at another state.” Id.
28
8442.11.3.3 7
1 The current case also involves willful copyright infringement, as did Axiom
2 Foods, Inc. v. Acerchem Int'l, Inc., No. CV 15-870 PA (AJWX), 2015 WL
3 12658234 (C.D. Cal. Sept. 11, 2015), aff'd, 874 F.3d 1064 (9th Cir. 2017). In that
4 case, the Court referred to Washington Shoe Co., and a number of other cases cited
5 by the plaintiffs for the proposition that intentional infringement of the copyright of
6 a plaintiff known to reside or do business in the forum state is itself sufficient to
7 confer jurisdiction, e.g., Columbia Pictures Television v. Krypton Broadcasting of
8 Birmingham, Inc., 106 F.3d 284, 289 (9th Cir. 1997) (“Columbia alleged, and the
9 district court found, that Feltner willfully infringed copyrights owned by Columbia,
10 which, as Feltner knew, had its principal place of business in the Central District.
Tel (310) 274-3803 • Fax (310) 860-2430
11 This fact alone is sufficient to satisfy the ‘purposeful availment’ requirement.”)

12 The jurisdictional motion in Axiom Foods was granted because there was no
232 N. CANON DRIVE
13 evidence that the defendants in that case knew that the copyrighted material
14 belonged to plaintiffs, whereas in the present case, Defendants clearly knew that the
15 Infringed Materials belonged to Carsey-Werner, and that Carsey-Werner was based
16 in California. (See Section II(C) above.) These facts alone suffice to create specific
17 personal jurisdiction. As the editors of the Rutter Group Practice Guide on Federal
18 Civil Procedure Before Trial (9th Circuit Ed.) observe at §3:208.1, “If a defendant is
19 alleged to have willfully infringed plaintiff's copyright with knowledge of both the
20 existence of the copyright and the forum of the copyright holder, jurisdiction
21 generally will be upheld since the “individualized targeting” establishes the
22 “something more” necessary to satisfy the express aiming requirement...”
23 Walden v. Fiore, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014) discussed another
24 requirement, namely that “the plaintiff cannot be the only link between the
25 defendant and the forum. Rather, it is the defendant's conduct that must form the
26 necessary connection with the forum State that is the basis for its jurisdiction over
27 him.” Id., 134 S. Ct. at 1122. This requirement is easily satisfied in this case by the
28
8442.11.3.3 8
1 trip to Los Angeles and the other 3 US cities to conduct principal photography,
2 which represents a substantial connection with California. Sugar Films, as the
3 producer, was responsible for the filming in Los Angeles, and BBC actively assisted
4 by approving the budget which must have included travel and filming costs, and by
5 financing the production, (Complaint, ¶11 – uncontroverted.)
6 Contrast such a strong connection with the forum state with the facts of
7 Walden, where 2 airline passengers sued a police officer for violating their Fourth
8 Amendment rights by seizing cash from them in Georgia during their return trip to
9 Nevada. The officer had no connection with Nevada, and therefore it is not
10 surprising that the Nevada courts were not entitled to exercise jurisdiction over him.
Tel (310) 274-3803 • Fax (310) 860-2430
11 Similarly, in the Axiom appeal, the Ninth Circuit concluded that defendant’s
12 “suit-related conduct” did not “create a substantial connection with [California].”

232 N. CANON DRIVE
13 Axiom Foods, Inc. v. Acerchem Int'l, Inc., supra, 874 F.3d at 1070 (citing Walden,
14 134 S.Ct. at 1121). Unlike Defendants in this case, Acerchem UK never physically
15 came to California, and its sole connection to California was that it sent no more
16 than ten of its newsletters to recipients who were physically located in California.
17 Not surprisingly, this connection was found to be too tenuous to create jurisdiction.
18 The cases cited in the Motion are also easily distinguishable. Cas. Assur. Risk
19 Ins. Brokerage Co. v. Dillon, 976 F.2d 596, 599 (9th Cir. 1992), is a defamation
20 case in which the court rejected plaintiff's contention that its incorporation in Guam,
21 alone, satisfied the effects test. It noted that the letter was never sent to Guam, and
22 that the plaintiff did not conduct any business at all in Guam. The brunt of the injury
23 was not considered to fall on Guam soil. That case has no similarities to this one.
24 In Rano v. Sipa Press, Inc., 987 F.2d 580, 587 (9th Cir. 1993), the Ninth
25 Circuit affirmed the dismissal of a claim against a defendant because it found it
26 lacked personal jurisdiction over him. He was a citizen of Turkey and a long-time
27 resident of France. His ties to California include three short visits to California in
28
8442.11.3.3 9
1 the last seven years, totaling six days. None of his visits to California involved
2 plaintiff or his photographs. Again, the case has no similarities to the present case.
3 And ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707, 713
4 (4th Cir.2002) addressed “whether a person electronically transmitting or enabling
5 the transmission of information via the Internet to Maryland, causing injury there,
6 subjects the person to the jurisdiction of a court in Maryland.” Again, the case has
7 no similarities to the present case.
8 Likewise, in the recent case in which a BBC entity prevailed on a
9 jurisdictional motion, Hit Bound Music Ltd., v. BBC Films et al., 2:16-cv-7125
10 CBM (KSx), the facts are entirely different. Plaintiff was a Canadian composer who
Tel (310) 274-3803 • Fax (310) 860-2430
11 sued BBC Films (a different BBC entity) and others over their use of his
12 compositions in a film shot in France. Plaintiff sought jurisdiction based on BBC

232 N. CANON DRIVE
13 Films’ contacts with California, but these were very tenuous, and the court found no
14 evidence that BBC Films’ conduct had been expressly aimed at California.
15 (c) Harm.
16 Carsey-Werner suffered harm in California because its copyrighted material
17 was taken without its consent and without payment, and it therefore lost license fees.
18 In addition, it lost control of its copyrighted property. (Acland Decl., ¶11.)
19 2. “Arising Out Of” Requirement
20 “Limited jurisdiction” means jurisdiction is limited to causes of action arising
21 out of or related to the nonresident's forum-related activities. Doe v. National
22 Medical Services (10th Cir. 1992) 974 F2d 143, 145. Although “arising out of” and
23 “related to” are alternative tests, the Supreme Court has not yet decided what
24 constitutes sufficient “relatedness” for specific jurisdiction. Carnival Cruise Lines,
25 Inc. v. Shute (1991) 499 US 585, 589, 111 S.Ct. 1522, 1525. The “relatedness” test
26 is merely part of a general inquiry to determine whether the exercise of personal
27 jurisdiction in a particular case offends “traditional notions of fair play and
28
8442.11.3.3 10
1 substantial justice.” [Rutter Group Prac. Guide Fed. Civ. Pro. Before Trial Ch. 3-E,
2 §3:139.6.] Thus, where defendant has had only limited contacts with the state, “it
3 may be appropriate” to require a showing that plaintiff's injury was proximately
4 caused by those contacts. Id. But where defendant's contacts with the jurisdiction are
5 more substantial, “it is not unreasonable” to hold the defendant subject to personal
6 jurisdiction even though the acts within the state are not the proximate cause of
7 plaintiff's injury. Chew v. Dietrich (2nd Cir. 1998) 143 F.3d 24, 29.
8 Defendants appear to argue that because they did not commit copyright
9 infringement on their trip to Los Angeles to film interviews and locations, the trip is
10 not relevant for jurisdictional purposes.1 But in determining the propriety of the
Tel (310) 274-3803 • Fax (310) 860-2430
11 exercise of personal jurisdiction, a court “must evaluate all of a defendant's contacts

12 with the forum state, whether or not those contacts involve wrongful activity by the
232 N. CANON DRIVE
13 defendant.” (Emphasis added.) Yahoo! Inc. v. La Ligue Contre Le Racisme et

14 L'Antisemitisme, 433 F.3d 1199, 1207 (9th Cir.2007.) “In a specific jurisdiction
15 inquiry, we consider the extent of the defendant's contacts with the forum and the
16 degree to which the plaintiff's suit is related to those contacts. A strong showing on
17 one axis will permit a lesser showing on the other.” (Emphasis added.) Id. at 1210.
18 Lastly, the “but for” test used by some courts asks if the plaintiff would not
19 have been injured “but for” the defendant's activities. Panavision Int'l, L.P. v.
20 Toeppen, 141 F.3d 1316, 1322 (9th Cir. 1998.) This test is satisfied because if
21 Defendants had not made Fall, Carsey-Werner would not have been injured.
22
23
24 1
The Motions cite Doe v. Nat'l Med. Servs., supra, and RAR, Inc. v. Turner Diesel,
25 Ltd., 107 F.3d 1272 (7th Cir. 1997), as authorities for this proposition, but Doe
involved a discharged hospital employee who sued Pennsylvania testing laboratory
26 alleging negligence in performing tests on urine sample, and RAR was a breach of
27 contract case. Neither has any application to the present case.
28
8442.11.3.3 11
1 3. “Reasonableness” Requirement
2 The third “reasonableness” prong, on which Defendants bear the burden of
3 proof, is only satisfied when the following 7 factors weigh in favor of the exercise of
4 jurisdiction over a nonresident defendant. Burger King Corp. v. Rudzewicz (1985)
5 471 US 462, 476-477, 105 S.Ct. 2174.
6 (a) The Extent Of Defendant's “Purposeful” Interjection
7 The stronger the plaintiff's showing of purposeful availment and relatedness
8 to forum-related acts, the more a defendant must show in terms of unreasonableness
9 to defeat jurisdiction. Burger King Corp., supra, 471 US at 477. An even greater
10 showing of unreasonableness is required to defeat jurisdiction where, as here,
Tel (310) 274-3803 • Fax (310) 860-2430
11 defendant directed its activities at a forum resident: “(W)here a defendant who

12 purposefully has directed his activities at forum residents seeks to defeat

232 N. CANON DRIVE
13 jurisdiction, he must present a compelling case that the presence of some other
14 considerations would render jurisdiction unreasonable.” Id. 471 US at 477.
15 Defendants in this case knew that Carsey-Werner was based in California, and that it
16 owned the copyrights to The Cosby Show. Further, they created their own direct
17 contacts with the jurisdiction by travelling to Los Angeles to film Fall. In addition,
18 BBC decided to distribute Fall via the iPlayer. Since they knew that about 65
19 million people outside the UK watched the iPlayer regularly, and because they were
20 aware of the highly California-centric nature of Fall, the court should find that this
21 constitutes another basis for finding purposeful interjection into the forum state.2
22
2
23 The injection was purposeful because tort law ordinarily imputes to an actor the
intention to cause the natural and probable consequences of his conduct. DeVoto v.
24 Pacific Fidelity Life Ins. Co., 618 F.2d 1340, 1347 (9th Cir.1980) (citing
25 Restatement (Second) of Torts § 8A (1965): “Intent is not ... limited to
consequences which are desired. If the actor knows that the consequences are
26 certain, or substantially certain, to result from his act, and still goes ahead, he is
27 treated by the law as if he had in fact desired to produce the result.”)
28
8442.11.3.3 12
1 (b) The Burden On Defendant In Defending In The Forum

2 The mere fact that local litigation is inconvenient (or some other forum more
3 convenient) is not enough. Litigating locally must be so gravely difficult that it puts
4 Defendants at a severe disadvantage. Requiring the nonresident to defend locally is
5 not constitutionally unreasonable “in this era of fax machines and discount air
6 travel.” Sher v. Johnson (9th Cir. 1990) 911 F2d 1357, 1365. Since BBC filed the
7 Stander lawsuits in 2014 and 2016 in this district, it cannot be a burden for them to
8 defend this lawsuit in California. And since they sued for lost profits under
9 California law, they must be generating profits within California.3
10 (c) The Extent Of Conflict With The Sovereignty Of The
Tel (310) 274-3803 • Fax (310) 860-2430
11 Defendant's State
12 The UK has no interest in protecting its citizens who infringe a foreign

232 N. CANON DRIVE
13 entity’s copyrights, and distribute the program to residents of that state.

14 (d) Forum State's Interest In Adjudicating Dispute
15 The strength of California’s interest in the dispute is an important factor.
16 Burger King Corp., supra, 471 US at 473 (“(a) State generally has a ‘manifest
17 interest’ in providing its residents with a convenient forum for redressing injuries
18 inflicted by out-of-state actors.”) California has a substantial interest in adjudicating
19 this dispute because it has an interest in protecting one of its citizens from blatant
20 infringement by foreign entities which come to the state to make a film that had
21 many California features, and distribute the program to California residents.
22
3
23 The BBC Motion seeks to confuse the issue by asserting that a BBC subsidiary
owns “Dancing With The Stars.” Id. fn. 3, pp. 5-6. This is irrelevant. What counts is
24 that the defendant in this case, the BBC, was named as plaintiff in both the 2014 and
25 2016 actions. Both complaints allege that BBC owns common law and federal
trademarks (Exh. 1, ¶¶10, 31, 37; Exh. 2, ¶¶12, 24, 30), and that defendants caused
26 substantial injury to BBC, which seeks recovery of lost profits and other relief (Exh.
27 1, ¶¶35, 41, 47, 53; Exh. 2, ¶¶28, 34, 40, 46.)
28
8442.11.3.3 13
1 (e) Most Efficient Judicial Resolution Of The Controversy

2 Defendants argue (e.g., BBC Motion, 11:5-9; Sugar Films Motion, 8:28-9:4)
3 that the court should grant the Motions because only UK copyright law is involved,
4 and it would therefore be more appropriate for an English court to rule on its own
5 laws. This is incorrect. Defendants infringed US copyright laws by distributing Fall
6 via the iPlayer to California residents such as Ms. Acland,4 and even if, arguendo,
7 they did not, Carsey-Werner has a viable cause of action for common law
8 misappropriation which should be tried by a California court, not an English court.
9 (f) The Importance Of The Forum To Plaintiff's Interest
Tel (310) 274-3803 • Fax (310) 860-2430
11 This Court would provide convenient and effective relief for Carsey-Werner
12 which does not want to litigate in England, which is a more expensive venue in
232 N. CANON DRIVE
13 which to litigate. (ARI Decl., ¶5.) Carsey-Werner offers to stipulate that if the
14 Motion is denied, it will take the depositions of UK-based witnesses in the UK.
15 (g) The Importance Of The Forum To Plaintiff's Interest
17 BBC argues that it would not be inconvenient for Carsey-Werner to litigate in
18 England because its counsel is also an English barrister. This is incorrect. Counsel
19 moved to California in 1987 and does not practice English law. (ARI Decl., ¶4.)
20 (h) The Existence Of An Alternative Forum.
21 The English courts do provide an alternative forum, albeit an inconvenient
22 and expensive one. Carsey Werner (which is, after all, the innocent victim of
23 Defendant’s willful infringement) should not be forced to litigate there.
24
25
4
A violation of 17 U.S.C. § 106(3) can occur when copies of a copyrighted work
26 are only distributed to one person. Ford Motor Co. v. Summit Motor Prod., Inc., 930
27 F.2d 277, 299–300 (3d Cir. 1991.)
28
8442.11.3.3 14
1 IV. THIS DISTRICT IS A PROPER VENUE

2 Corporations are “deemed to reside … in any judicial district in which such
3 defendant is subject to the court's personal jurisdiction with respect to the civil
4 action in question.” 28 USC § 1391(c)(2). Thus, in actions against a corporation,
5 venue is no longer a separate requirement. It is satisfied by proof that the corporate
6 defendant is subject to personal jurisdiction in the district. In re Volkswagen of
7 America, Inc. (5th Cir. 2008) 545 F.3d 304, 312-313. So, if the court accepts that it
8 has jurisdiction over Defendants, it need not consider venue. In any event, this court
9 is a proper venue because a substantial part of the events or omissions giving rise to
10 the claim, such as the trip to Los Angeles to film Fall, occurred in this District.
Tel (310) 274-3803 • Fax (310) 860-2430
11 Lastly, if there is no federal district in which the action “may otherwise be

12 brought,” the general venue statute contains a “fallback” provision (28 USC §
232 N. CANON DRIVE
13 1391(b)(3).) The rule is that when the other grounds for venue do not exist, venue
14 lies in a district in which any defendant is subject to the court's personal jurisdiction
15 with respect to the civil action in question.
16 V. CONCLUSION
17 For the reasons set forth above, Carsey-Werner respectfully requests that the
18 court denies both Motions. In the alternative, if the Court believes that there are
19 factual issues that would assist it in making a ruling, Carsey-Werner requests an
20 adjournment of this hearing in order to conduct discovery on those issues.
21
22 DATED: February 5, 2018 RUFUS-ISAACS ACLAND &
GRANTHAM LLP
23
24
25 By:
26 Alexander Rufus-Isaacs
28
8442.11.3.3 15
PROOF OF SERVICE
1
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
2
At the time of service, I was over 18 years of age and not a party to this
3 action. I am employed in the County of Los Angeles, State of California. My
business address is 232 N. Canon Drive, Beverly Hills, California 90210.
4
On February 5, 2018, I served true copies of the following document(s)
5 described as PLAINTIFF'S JOINT OPPOSITION TO BBC'S AND SUGAR
FILMS’ MOTIONS TO DISMISS FOR LACK OF PERSONAL
6 JURISDICTION AND/OR IMPROPER VENUE UNDER F.R.C.P. 12(B)(2)
OR (3) on the interested parties in this action as follows:
7
Louis P. Petrich
8 E-Mail: lpetrich@lpsla.com
Daniel M. Mayeda
9 E-Mail: dmayeda@lpsla.com
Elizabeth L. Schilken
10 E-Mail: eschilken@lpsla.com
Leopold, Petrich & Smith P.C.

Tel (310) 274-3803 • Fax (310) 860-2430
11 2049 Century Park East, Suite 3110

Los Angeles, Calif. 90067

12
232 N. CANON DRIVE
13 BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed

the document(s) with the Clerk of the Court by using the CM/ECF system.
14 Participants in the case who are registered CM/ECF users will be served by the
CM/ECF system. Participants in the case who are not registered CM/ECF users will
15 be served by mail or by other means permitted by the court rules.
16 I declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct and that I am employed in the office
17 of a member of the bar of this Court at whose direction the service was made.
18 Executed on February 5, 2018, at Beverly Hills, California.
19
20
Alexander Rufus-Isaacs
21
22
23
24
25
26
27
28
8442.11.3.3

Carsey-Werner V BBC MTD Opposition

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Case 2:17-cv-08041-PA-AS Document 39 Filed 02/05/18 Page 1 of 41 Page ID #:280

RUFUS-ISAACS ACLAND & GRANTHAM LLP

Tel (310) 274-3803 • Fax (310) 860-2430

THE CARSEY-WERNER COMPANY, CASE No. 2:17-cv-8041-PA (ASx)

12 LLC, a California limited liability

company, PLAINTIFF'S JOINT OPPOSITION

E. Many People In California Watched Fall Via The iPlayer .................... 4

III. THIS COURT SHOULD EXERCISE SPECIFIC PERSONAL

12 JURISDICTION OVER DEFENDANTS ......................................................... 6

13 A. Burden Of Proof ...................................................................................... 6

Tel (310) 274-3803 • Fax (310) 860-2430

Tel (310) 274-3803 • Fax (310) 860-2430

12 Burger King Corp., supra, 471 US at 473 ................................................................. 13

13 Burger King Corp., supra, 471 US at 477 ................................................................. 12

Schwarzenegger, supra, 374 F.3d at 806 .................................................................... 7

Tel (310) 274-3803 • Fax (310) 860-2430

11 28 USC § 1391(c)(2). ................................................................................................ 15

Tel (310) 274-3803 • Fax (310) 860-2430

1 II. THE FACTS.

Tel (310) 274-3803 • Fax (310) 860-2430

1 and by financing the production. (Complaint, ¶11 – uncontroverted.) Fall’s end

Tel (310) 274-3803 • Fax (310) 860-2430

1 screen, reading “The Cosby Show - Carsey-Werner Company/Bill Cosby.” (DVD -

Tel (310) 274-3803 • Fax (310) 860-2430

12 (Clive Illenden’s Declaration in support of BBC’s Motion, ¶¶8, 9.)

Tel (310) 274-3803 • Fax (310) 860-2430

1 III. THIS COURT SHOULD EXERCISE SPECIFIC PERSONAL

Tel (310) 274-3803 • Fax (310) 860-2430

12 statements contained in affidavits must be resolved in the plaintiff's favor. Id.

13 B. Nationwide Aggregation Of Contacts Is Permitted

1 2) Plaintiff’s cause of action arises out of or results from defendant’s

Tel (310) 274-3803 • Fax (310) 860-2430

12 (a) Defendants Have Acted Intentionally.

Tel (310) 274-3803 • Fax (310) 860-2430

11 This fact alone is sufficient to satisfy the ‘purposeful availment’ requirement.”)

Tel (310) 274-3803 • Fax (310) 860-2430

12 “suit-related conduct” did not “create a substantial connection with [California].”

Tel (310) 274-3803 • Fax (310) 860-2430

12 compositions in a film shot in France. Plaintiff sought jurisdiction based on BBC

Tel (310) 274-3803 • Fax (310) 860-2430

11 exercise of personal jurisdiction, a court “must evaluate all of a defendant's contacts

13 defendant.” (Emphasis added.) Yahoo! Inc. v. La Ligue Contre Le Racisme et

Tel (310) 274-3803 • Fax (310) 860-2430

11 defendant directed its activities at a forum resident: “(W)here a defendant who

12 purposefully has directed his activities at forum residents seeks to defeat

1 (b) The Burden On Defendant In Defending In The Forum

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12 The UK has no interest in protecting its citizens who infringe a foreign

13 entity’s copyrights, and distribute the program to residents of that state.

1 (e) Most Efficient Judicial Resolution Of The Controversy

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1 IV. THIS DISTRICT IS A PROPER VENUE

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11 Lastly, if there is no federal district in which the action “may otherwise be

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Los Angeles, Calif. 90067

13 BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed

E. Many People In California Watched Fall Via The iPlayer .................... 4

III. THIS COURT SHOULD EXERCISE SPECIFIC PERSONAL

12 JURISDICTION OVER DEFENDANTS ......................................................... 6

13 A. Burden Of Proof ...................................................................................... 6

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