United States District Court, District of Columbia
RANDOLPH D. MOSS United States District Judge
copyright infringement action is before the Court on
Defendant's motion to dismiss for lack of personal
jurisdiction, or, in the alternative, for failure to state a
claim. See Dkt. 7. Defendant is Youku Tudou Inc.
(“Youku”), a Chinese internet television company.
Plaintiff is Triple Up Limited (“Triple Up”), a
Seychelles corporation. The suit concerns the performance
rights to three Taiwanese movies, which were allegedly
viewable on Youku's websites from within the United
States. Beyond the websites' mere accessibility, however,
neither Youku, Triple Up, nor the contested works bears any
case-relevant connections to the United States. Although the
law governing personal jurisdiction in the context of the
internet is admittedly unsettled, the contacts in this case
are plainly insufficient and do not test the boundaries of
that evolving doctrine. The Court, accordingly, will grant
Youku's motion to dismiss for lack of personal
jurisdiction and will deny Triple Up's request for
Triple Up is a corporation located in and organized under the
laws of Seychelles, an archipelago nation off the coast of
East Africa. Dkt. 1 at 4 (Compl. ¶ 15). It claims to own
“the exclusive internet broadcasting rights . . . in
the United States” for three Taiwanese movies: (IMAGE
OMITTED) (“Sleeping Youth”); (IMAGE OMITTED)
(“Sorry, I Love You”); and (IMAGE OMITTED)
(“Squirrel Suicide Incident”). Id. at 1
(Compl. ¶ 1); see also Dkt. 11-1 (Hsu Decl.).
Youku is a Cayman Islands corporation with its principal
place of business in China, where it “is the leading
[i]nternet television company.” Dkt. 7-1 at 2-3 (Tang
Decl. ¶¶ 4, 5, 9). Youku operates two website
platforms on which “[u]sers can view and publish
high-quality video content, ” and an internet search
engine that allows users to search for videos. Id.
at 2 (Tang Decl. ¶ 5). Most videos on Youku's
websites have been placed there by Youku itself. See
Id. (Tang Decl. ¶ 6). Those videos consist of
“professionally-produced content that Youku has
licensed from third parties, ” as well as Youku's
own “in-house productions.” Id. In
addition, however, Youku's users can upload videos of
their own choosing. Id. Together, Youku's
websites receive about 400 million unique visitors each
month. Id. at 3 (Tang Decl. ¶ 12). Less than
one percent of the websites' views come from the United
States, id., although the exact number of U.S.
viewers is not reflected in the record. The text on
Youku's websites is written entirely in Mandarin Chinese.
Id. at 2 (Tang Decl. ¶ 5); see also
Dkt. 1 at 7-14 (Compl. ¶¶ 29-41) (website
screenshots); Dkt. 11-2 (Zhang Decl.) (same).
respect to videos that Youku itself has uploaded, Youku
employs “geoblocking” technology. Dkt. 7-1 at 2
(Tang Decl. ¶ 7). This means that Youku restricts access
to those videos based on the viewer's geographic
location, thus ensuring that the videos are accessible only
“in locations for which Youku is authorized to
display” them. Id. When users attempt to
access restricted content from a geoblocked location, they
receive an error message or are redirected to the
website's main page. Id. (Tang Decl. ¶ 8).
Youku “does not implement geoblocking” for videos
uploaded by users, however. Id. at 4 (Tang Decl.
generates revenue “primarily from online advertising
services and, to a lesser extent, subscription or
pay-per-view-based online video services.” Dkt. 11-4 at
12; accord Dkt. 7-1 at 3 (Tang Decl. ¶ 13). The
company sells “a great majority” of its internet
ad space to third-party advertising agencies, including
advertising agencies in the United States. Dkt. 11-4 at 8,
12-13. Those ads are then distributed using
“[i]nnovative [t]argeting” strategies to
“reach targeted users based on” certain
demographic markers, including “the geographic location
of the user.” Id. at 12. Thus, although
Youku's websites appear in Mandarin Chinese, when
accessed from the United States, Youku's videos are
sometimes preceded by English-language advertisements for
American products. See Dkt. 11-2 at 3, 12 (Zhang
Decl. ¶¶ 5(e), 8) (attesting to accessing
Youku's websites from the District of Columbia and seeing
English-language video advertisements for, among other
things, the University of Phoenix, Allstate Insurance, and
Quicken Loans). Youku also earns revenue by selling
subscriptions to its ad-free content service called
“Youku VIP.” Dkt. 11-4 at 13. Youku “is not
aware of any Youku VIP subscribers that reside in the
District of Columbia, ” Dkt. 7-1 at 4 (Tang Decl.
¶ 14), but the record is silent as to whether any
subscribers may reside elsewhere in the United States.
Youku has no offices or employees in the United States and
does not market its products or services there, id.
at 3-4 (Tang Decl. ¶¶ 9, 17), it has at least some
U.S. business connections. For example, Youku stock has been
traded on the New York Stock Exchange, and Youku has
maintained an agent for service of process in New York. Dkt.
11-4 at 6-7 (Youku's “Form 20-F” filed with
the Securities Exchange Commission for the fiscal year 2014).
Youku has also partnered with a U.S. software firm to develop
“video fingerprint” technology for removing
videos with “piracy issues.” Id. at 15.
And Youku has entered into “digital distribution
agreement[s]” with U.S. production studios to bring
American content to Youku's platforms, id. at
13, and may be partnering with “U.S. entertainment
companies to produce original content, ” Dkt. 11-9 at 2
(Lulu Yilun Chen & Stephen Engle, Youku Looks to U.S.
for Videos to Stream to Chinese Users, Bloomberg (Oct.
August and December 2015, Jiwei Zhang, one of Triple Up's
attorneys in the District of Columbia, was able to stream
copies of “Sleeping Youth, ” “Sorry, I Love
You, ” and “Squirrel Suicide Incident” from
Youku's websites. See Dkt. 11-2 at 1-12 (Zhang
Decl. ¶¶ 5-7). One of the videos was preceded by an
English-language video advertisement for the University of
Phoenix. Id. at 3 (Zhang Decl. ¶ 5(e).) The
others were preceded by advertisements for Chinese-language
video games containing Mandarin Chinese text. Id. at
7, 10 (Zhang Decl. ¶¶ 6(e), 7(e)); see
also Dkt. 11 at 13. There is no indication that the
latter advertisements included any English-language
voice-overs. See Dkt. 11-2 at 7, 10 (Zhang Decl.
¶¶ 6(e), 7(e)). Based on a comparison of
user-uploaded content and Youku-uploaded content, Zhang
infers that the three videos had been uploaded by Youku
itself, and not by Youku's users. Id. at 13-14
(Zhang Decl. ¶ 9). Triple Up has not alleged that anyone
other than Zhang has used Youku's websites to view the
films at issue from within the United States.
response, Youku maintains that it uploaded “Sleeping
Youth” and “Sorry, I Love You” pursuant to
an express license to display those films in China, and that
it implemented geoblocking to prevent the Youku-uploaded
versions from being displayed in the United States. Dkt. 7-1
at 4 (Tang Decl. ¶ 19). It says that any non-geoblocked
versions of those films on its websites, as well as any
versions of “Squirrel Suicide Incident, ” must
have been uploaded by Youku's users. Id. (Tang
Decl. ¶ 20); see also Dkt. 12 at 16 n.9. Youku
also declares-and Triple Up does not dispute-that Triple Up
notified Youku of the allegedly infringing content on January
17, 2016, and that Youku then “removed all versions of
the films” from its websites “within 24
hours.” Dkt. 7-1 at 6 (Tang Decl. ¶¶ 24-25).
There is no allegation that any of the three films have been
available on Youku's websites in any form since January
February 1, 2016, Triple Up filed the instant complaint. Dkt.
1. It alleges that Youku itself (as opposed to its users)
uploaded each of the three films to Youku's websites,
where they could be viewed throughout the United States.
Id. at 2, 6-12, 14 (Compl. ¶¶ 4, 29-37,
43-44). It also alleges more broadly that Youku's
“entire business model . . . relies upon systematic,
widespread, and willful copyright infringement.”
Id. at 2 (Compl. ¶ 7); see also Id. at
4, 15-16 (Compl. ¶¶ 12, 45-47, 53-54).
Up asserts four causes of action against Youku regarding each
of the three films. Count One alleges infringement of the
right of public performance in violation of 17 U.S.C.
§§ 106(4) and 501 (including direct, vicarious,
contributory, and inducement-based theories of liability).
Id. at 17-19 (Compl. ¶¶ 57-67). Count Two
alleges infringement of the rights of reproduction and
distribution in violation of 17 U.S.C. §§ 106(1),
106(3), and 501 (again including direct, vicarious,
contributory, and inducement-based theories of liability).
Id. at 19- 21 (Compl. ¶¶ 68-80). Count
Three alleges false designation of origin, false descriptions
and representations, and unfair competition under the Lanham
Act, 15 U.S.C. § 1125. Id. at 21-22 (Compl.
¶¶ 81-87). And the last count alleges unfair
competition under D.C. common law. Id. at 23-24
(Compl. ¶¶ 98-104). Triple Up has withdrawn its
causes of action for infringement of the right to prepare
derivative works under 17 U.S.C. § 106(2) and for
violation of the D.C. Consumer Protection Procedures Act.
Dkt. 11 at 7 n.2.
has now moved to dismiss the complaint for lack of personal
jurisdiction, or, in the alternative, for failure to state a
claim on which relief can be granted. Dkt. 7.
Court must begin-and, in this case, end-with the motion to
dismiss for lack of personal jurisdiction. See Sinochem
Int'l Co. v. Malay. Int'l Shipping Corp., 549
U.S. 422, 430- 31 (2007) (“[A] federal court generally
may not rule on the merits of a case without first
determining that it has jurisdiction over . . . the parties .
. . .”). On such a motion, the plaintiff bears the
burden of “establishing a factual basis for the
exercise of personal jurisdiction” over each defendant.
Crane v. N.Y. Zoological Soc., 894 F.2d 454, 456
(D.C. Cir. 1990). It must do so by “alleg[ing] specific
acts connecting [the] defendant with the forum” and
“cannot rely on conclusory allegations.” Clay
v. Blue Hackle N. Am., LLC, 907 F.Supp.2d 85, 87 (D.D.C.
2012). The Court “need not treat all of plaintiffs'
allegations as true, ” moreover, and “may receive
and weigh affidavits and any other relevant matter to assist
it in determining the jurisdictional facts.”
Id. Ultimately, the Court must “satisfy itself
that it has jurisdiction to hear the suit, ” and, to
the extent necessary, “may look beyond the allegations
of the complaint” to do so. Achagzai v. Broad. Bd.
of Governors, 170 F.Supp.3d 164, 173 (D.D.C. 2016).
usual case, establishing personal jurisdiction over a
non-resident defendant requires “a two-part
inquiry.” GTE New Media Servs. Inc. v. BellSouth
Corp., 199 F.3d 1343, 1347 (D.C. Cir. 2000). The
exercise of jurisdiction must comport with both the long-arm
statute of the forum and the Constitution's due process
requirements. Id. As explained in more detail below,
the due process inquiry examines the defendant's
“contacts, ties, or relations” with the forum
state, Burger King Corp. v. Rudzewicz, 471 U.S. 462,
472 (1985), and, in the case of “specific” or
“case-linked” jurisdiction, those contacts must
give rise to the specific claims at issue, Goodyear
Dunlop Tires Operations, SA v. Brown, 564 U.S. 915,
Rule 4(k)(2) of the Federal Rules of Civil Procedure provides
that, if the claim arises under federal law, if a summons has
been served, and if the defendant is beyond the jurisdiction
of any one state's courts, then federal courts may
exercise jurisdiction-without regard to the forum's
long-arm statute-so long as due process requirements are met.
See Fed. R. Civ. P. 4(k)(2); Mwani v. bin
Laden, 417 F.3d 1, 10 (D.C. Cir. 2005). For this
purpose, the Court may assume that the defendant is outside
the long-arm jurisdiction of any one state's courts
unless the defendant “concede[s] to the jurisdiction of
any state.” Mwani, 417 F.3d at 11. And,
although the “forum” for purposes of Rule 4(k)(2)
is not a single state but “the United States as a
whole, ” id., the constitutional inquiry is
“otherwise the same, ” Safra v. Palestinian
Auth., 82 F.Supp.3d 37, 47 (D.D.C. 2015).
Triple Up argues only for the exercise of specific
jurisdiction under the “transacting business”
prong of the District's long-arm statute, D.C. Code
§ 13-423(a)(1), or, in the alternative, under Rule
4(k)(2). Dkt. 11 at 14-24 & nn.3 & 7. Although Youku
disputes whether the “transacting business” prong
properly applies to these facts,  see Dkt. 7 at 21;
Dkt. 12 at 7-9, Youku does not dispute for purposes of Rule
4(k)(2) that three of the claims against it arise under
federal law or that it was properly served. See Dkt.
12 at 7-16. Nor does Youku concede to personal jurisdiction
in the courts of any state. See id.
result, whether or not the D.C. long-arm statute authorizes
the exercise of personal jurisdiction here, the Court must
still address the constitutional questions. The logic is as
follows: If the D.C. long-arm statute allows for
jurisdiction, then, under the ordinary framework, the Court
must go on to consider whether the exercise of jurisdiction
would satisfy due process. But if the D.C. long-arm statute
does not apply, then Rule 4(k)(2) governs, and,
because the non-constitutional predicates to the use of
4(k)(2) are met, the Court must consider the due process
inquiry regardless. The constitutional issues in this case
are therefore unavoidable.
Court, accordingly, will address a single, dispositive
question: Are Youku's contacts with the United States as
a whole constitutionally sufficient to justify the exercise
of specific personal jurisdiction over it with respect to
Triple Up's asserted claims? See Mwani, 417 F.3d
at 11. Because the Court finds that they are not, personal
jurisdiction is unavailable under either of Triple Up's
Due Process Requirements for Specific Jurisdiction ...