The US Court of Appeals for the Fifth Circuit concluded that a district court had personal jurisdiction over a foreign defendant’s website that purposefully targeted a US-based audience. DISH Network, LLC v. Bassam Elahmad, Case No. 23-20180 (5th Cir. Mar. 8, 2024) (Willett, Wilson, Ramirez, JJ.) (per curiam).
DISH Network sued Bassam Elahmad, a German resident doing business as Elahmad.com, for contributory copyright infringement, alleging that Elahmad unlawfully provided access to DISH’s copyrighted Arabic language channels. DISH alleged that Elahmad found, combined and organized illegal streams and loaded links onto Elahmad.com. DISH sent more than 60 copyright infringement notices to Elahmad, who never responded or removed the content. Although Elahmad resided in Germany, DISH argued that any court in the United States had jurisdiction over him under Fed. R of Civ. Pro. 4(k)(2) because his website reached into and targeted the US. DISH also argued that Elahmad was not subject to jurisdiction in any particular US state. The district court disagreed, concluding that it could not exercise personal jurisdiction over Elahmad because DISH’s complaint did not allege that any conduct had occurred in Texas. The district court twice denied DISH’s motions for default judgment and dismissed the complaint. DISH appealed.
The Fifth Circuit addressed the district court’s application of Rule 4(k)(2) and whether DISH had made a sufficient prima facie showing of specific personal jurisdiction to sustain its case.
Addressing Rule 4(k)(2), which provides personal jurisdiction in any US district court if a defendant is not otherwise subject to jurisdiction in a specific state, the Fifth Circuit clarified that for a finding of personal jurisdiction under this rule, the question is whether a defendant has sufficient minimum contact “with the entire United States, not a forum state.” The Fifth Circuit found that the district court’s analysis focused solely on Elahmad’s Texas contacts – not the entire US – and was therefore reversible error.
Turning to DISH’s burden to establish a prima facie case of personal jurisdiction, the Fifth Circuit noted that DISH had properly served Elahmad. DISH therefore only had to satisfy three other conditions: that its claims arose from federal law, that Elahmad was not subject to general jurisdiction in another state, and that exercising jurisdiction would be consistent with the US Constitution. The Court concluded that the first two conditions were easily met because copyright laws are federal and the burden to establish that another state has jurisdiction falls on the defendant. Elahmad had not answered the complaint or joined the appeal. Clearly, he had not met that burden.
The Fifth Circuit found that the third condition was “a closer question” that required consideration of whether Elahmad had sufficient ties to the US to satisfy constitutional due process concerns. Because DISH argued that the district court had only specific personal jurisdiction over the defendant (not general), DISH needed to show that Elahmad purposefully availed himself of “the privilege of conducting activities in the United States,” that DISH’s claim arose out of those contacts, and that it would be “fair and reasonable” to exercise jurisdiction over Elahmad.
The Fifth Circuit explained that personal availment becomes a more complex issue in the context of the internet. Applying the framework set out in Zippo Manufacturing v. Zippo Dot Com (W.D. Pa. 1997), the Court explained that a passive website cannot be evidence that a defendant purposefully availed itself of the benefits of a forum where the website can simply be accessed. Instead, other facts must show that a defendant availed itself of the forum, such as entering into contracts with residents of the forum or engaging with users in the forum because of the activeness of the website.
The Fifth Circuit found certain of DISH’s arguments unpersuasive. For instance, DISH pointed to Elahmad.com’s advertisements for US companies, but the Court noted that users only viewed the advertisements when they were already on the website, so this could not be evidence of purposefully drawing in customers. Furthermore, the “advertising isn’t what gives rise to DISH’s claim – the streaming of DISH’s channels on his website does.” DISH also noted Elahmad’s failure to block US access to his website, but the Court found that was not evidence of specifically targeting US users.
However, the Fifth Circuit found other evidence persuasive, such as the fact that Elahmad advertised directly to US users on US social media platforms, stating that his website was a place to watch “Arab channels in America.” Elahmad.com also had a Digital Millennium Copyright Act (DMCA) notice but no reference to any other country’s copyright laws. Elahmad contracted with a US company to ensure his website performed optimally for US users and hid his IP address. The Court found that individually, none of these facts would give rise to personal jurisdiction, but “taken together, and given that they relate to DISH’s claim,” they were sufficient.
Finally, the Fifth Circuit found that it was “fair and reasonable” to subject Elahmad to US jurisdiction. DISH met its prima facie burden, meaning the burden shifted to Elahmad to show why jurisdiction would be unreasonable. Since he had not responded to the suit, he did not meet that burden. Further, the Court found that DISH’s argument that its claims arose under US copyright laws – so no other forum could hear its claim – had merit. The Court therefore reversed and remanded, with instructions for the district court to proceed on DISH’s motion for default judgment.
Practice Note: Establishing personal jurisdiction over a defendant located outside the US can be a challenge, but this case suggests that multiple sources of evidence may be aggregated to make a prima facie showing that a defendant purposefully availed itself of the benefits of the US as a forum.
