1. Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

1. OPEN SESAME IS NOT A LEGAL ENTITY CAPABLE OF BEING

   SUED BY PLAINTIFF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2. THIS COURT LACKS PERSONAL JURISDICTION OVER THE

   DEFENDANTS DOES 1-1000

   1. This Court Should Continue To Apply the Fundamental Ideas of

      Fairness on Which Personal Jurisdiction Rests Under the Constitution

      And Our Legal Tradition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

   2. This Court Lacks Personal Jurisdiction Over DOES 1-1000 Because

   DOES 1-1000 Do Not Have the Required Minimum Contacts With

   California Such that Exercising Jurisdiction Would be Reasonable. . . . . . .12

3. THIS COURT DOES NOT HAVE PROPER VENUE OVER

1. This Court Does Not Have Proper Venue Over Open Sesame Under

1. SERVICE OF PROCESS ON DEFENDANTS DOES 1-1000 AND OPEN

1. Posting Summons to OpenSource was Not a Valid Publication

   Under Cal. Code Civ. Proc. §415.50 . . . . . . . . . . . . . . . . . . . . . .21

2. Posting Summons to the Usenet Was Not Sufficient Service of

1. Service of Process on Open Sesame Was Improper. . . . . . . . . . . . . . . 23

1. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CASES PAGE

Asahi Metal Industry Co. v. Superior Court

480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) . . . . . . . . . . . . . . . . . . .20

Associated Students of the University of California at Riverside v. Kleindienst

60 F.R.D. 65 (C.D. Cal. 1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Barrett v. Catacombs Press

44 F.Supp.2d 717 (E.D. Pa. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 21

Bensusan Restaurant Corp. v. King

937 F.Supp. 295 (S.D.N.Y. 1996), aff’d, 126 F.3d 25 (2d Cir. 1997) . . . . . . . . 18, 19

Blumenthal v. Drudge

992 F.Supp. 44 (D.D.C. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Bochan v. La Fontaine

1999 U.S. Dist. LEXIS 8253 (E.D.Va., May 26, 1999) . . . . . . . . . . . . . . . . . 20

Burger King Corp. v. Rudzewicz

471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) . . . . . . . . . . . . . . . . 16, 17

Calabrese v. Springer Personnel

534 N.Y.S. 2d 83 (Civ. Ct. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

Calder v. Jones

465 U.S. 783 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

California Clippers v. U.S. Soccer Football Assoc.

314 F.Supp. 1057 (N.D. Cal. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . .14, 15

Carteret Savings Bank, FA v. Shushan

954 F.2d 141 (3rdCir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 25

Columbia Ins. Co. v. Seescandy.com

185 F.R.D. 573, 1999 U.S. Dist. LEXIS 12652 at *16 (N.D. Cal. 1999). . . . . . . . .27

CompuServe, Inc. v. Patterson

89 F.3d 1257 (6thCir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . .19, 20, 23

Cybersell, Inc. v. Cybersell, Inc.

130 F.3d 414 (9thCir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

Denver R.G.W.R. Co. v. Brotherhood of R.R. Trainmen

287 U.S. 556 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Erbacci, Cerone and Moriarty, Ltd. v. United States

166 F.R.D. 298 (S.D. N.Y. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

Hasbro, Inc. v. Clue Computing, Inc.

994 F.Supp. 34 (D. Mass. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Hecht v. Malley

265 U.S. 144 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

IMO Industries, Inc. v. Kiekert

155 F.3d 254 (3rdCir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

International Shoe v. Washington

326 U.S. 310 , 66 S.Ct. 154, 90 L.Ed. 95 (1945) . . . . . . . . . . . . . . . . . . . 15, 17

Johnson v. South Blue Hill Cemetery Assoc.

221 A.2d 280 (Me. 1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

Magnuson v. Video Yesteryear

85 F.3d 1424 (9thCir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Maritz v. Cybergold, Inc.

947 F.Supp. 1328 (E.D. Mo. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . .23

Marshall v. State

544 N.Y.S.2d 437 (Ct. Cl. N.Y. 1989) . . . . . . . . . . . . . . . . . . . . . . . . 26, 27

Milliken v. Meyer,

311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940) . . . . . . . . . . . . . . . 16

Motta v. Samuel Weisner, Inc.

768 F.2d 481 (1stCir), cert. den., 106 S.Ct. 596, 88 L.Ed.2d 575 (1985). . . . . . . . .13

Mullane v. Central Hanover Bank & Trust Co.

339 U.S. 306 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 31

New England Merchantes Nat’l Bank v. Iran Power Generation and Transmission Co.

495 F.Supp. 73 (S.D. N.Y. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

Panavision Int’l, L.P. v. Toeppen

938 F.Supp. 616 (C.D. Cal. 1996) . . . . . . . . . . . . . . . . . . . . . . . . 19, 21, 22

Project Basic Tenants Union v. Rhode Island Housing and Mortgage Finance Corp.

636 F.Supp. 1453 (D. R.I. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

VE Holding Corp. v. Johnson Gas Appliance Co.

917 F.2d 1574 (Fed. Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Wawa, Inc. v. Christensen

1999 U.S. Dist. LEXIS 11510 at *4 (E.D. Pa. 1999) . . . . . . . . . . . . . . . . . . .27

World-Wide Volkswagon Corp. v. Woodson

444 U.S. 286 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 20

Yonce v. Miners Memorial Hospital Ass’n.

161 F.Supp 178 (W.D. Virginia 1958). . . . . . . . . . . . . . . . . . . . . . . . . . 13

Zippo Mfg. Co. v. Zippo Dot Com, Inc.

952 F.Supp. 1119 (W.D. Pa. 1997) . . . . . . . . . . . . . . . . . . . . . . . 19, 20, 23

STATUTES

California Code of Civil Procedure

Section 413.30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Federal Rule of Civil Procedure 4(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Federal Rules of Civil Procedure 17(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 31

Government Code Section 6000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30

Government Code Section 6060 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30

28 U.S.C. Section 1391(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

28 U.S.C. Section 1400(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25

MEMORANDUM OF POINTS AND AUTHORITIES

I.

INTRODUCTION

The Internet does not and should not provide an excuse to abandon the traditional rules that are designed to embody basic concepts of Due Process, to protect individuals from the burdens and risks of being called into a distant forum with which they have no significant connection. Yet the traditional rules on personal jurisdiction, venue and service of process still allow an injured victim to reach a commercial enterprise that uses modern electronic means regularly to solicit commercial business in the forum. This is not such a case. The defendants are individuals, not commercial entities; most of them reside outside California and some reside outside the United States. None is engaged in commercial activities in California or elsewhere related to the plaintiff’s claims.

If the plaintiff has patent infringement claims to bring, it should be left to sue the computer manufacturers and other commercial entities that are using the allegedly infringing program. Therefore, Defendants’ motion to dismiss should be granted.

A. Questions Presented

B. Facts

Plaintiff Closed Corp. is the creator and owner of what has become the world’s dominant PC operating system ("Views). Its complaint alleges that the members of an Internet users group (or Usenet) have infringed its patents when they created a freely-available alternative operating system ("Open"). The defendants are essentially unknown to Closed and apparently scattered around the country and the world.

The defendants have collectively -- and spontaneously -- created "Open" in response to Closed’s increasingly restrictive licensing practices that had begun in the mid-1990s. Closed would only reveal source code to those licensees who would agree not to make any modifications, modules, plug-ins or enhancements--with the result that third party software developers and users became locked into Closed-sponsored applications.

Open Sesame is an unmoderated Usenet, also known as an unmoderated newsgroup. Once the group is registered and assigned a name, anyone can "subscribe" (i.e., participate) by reading and posting messages to the group. Users are often anonymous, identified only by their email addresses. Posted messages on the news server are propagated to adjacent news servers which in turn distribute to other servers, and so on. An unmoderated Usenet has no central structure or controlling entity to coordinate or direct its affairs, exclude others, or limit the posting of messages. The Open Sesame users’ group is hosted on a main server in Finland. In addition, Usenet messages are often replicated on "mirror servers" located around the world. This reduces Internet traffic to the host server. Operators of these mirror servers typically do not monitor the content of the users’ groups and the user group participants have no control over the mirror servers. It is known that open Sesame is carried on mirror servers at the California Institute of Technology and at Stanford University.

The user community did not like Closed’s regime of secrecy and restraints. Various user groups sprang up, in which participants freely exchanged ideas on how to develop alternative operating systems. One of the more successful of these is the defendant Open Sesame, whose members (i.e., participants) gradually over time created the Open operating system. Open started as a rudimentary operating system in the public domain and was tweaked and expanded by countless users in the group. The process was one of continuous innovation. Each modification was posted to Open Sesame site, to be tested and critiqued by others. Modifications deemed useful were merged into the Open baseline by a small group of developers and then posted on the main server.

The defendants were not individually or collectively in business to develop an operating system for profit. They were simply a random and self-selected set of innovators. Yet what they did had potential commercial implications and--more importantly for this case--threatened the commercial dominance that Closed had created for Views and was trying to create for Views-based applications.

Some of the defendants recognized that it would be important to develop a graphic user interface ("GUI"), if Open were to be useful to a lot of users. Members of Open Sesame group did this, with substantial effort and without access to the Views GUI, which is based on secret source code that could not be examined or copied.

The Open program and its GUI are freely available in the computer community. Because of Open’s versatility and popularity among users, some well-known computer manufacturers have begun to preload Open on their machines as an alternative to Views. Because Open is essentially free, it has brought Closed unwelcome competition to Views – and Closed has sued. Interestingly, Closed has chosen to sue the defendants (who are simply innovators without an economic stake in Open) rather than the well-known computer makers which have substituted Open for Views on their PCs.

Pursuant to their claims, Plaintiffs have served an individual member of Open Sesame who made an anti-Views speech in San Jose. Plaintiff has also attempted to serve the Open Sesame group itself, and a thousand unknown defendants, by posting copies of the summons and complaint to the internet newsletter, OpenSource, and by emailing copies of the summons to several email addresses obtained from the Usenet Archive. Some of these emails were returned as undeliverable.

II.

OPEN SESAME IS NOT A LEGAL ENTITY CAPABLE OF BEING SUED BY PLAINTIFF

Open Sesame is an unmoderated Usenet. Therefore, there is no controlling authority that directs its activities or controls membership. Because an "unincorporated association" is the only type of legal entity that could possibly include groups such as Open Sesame, the Plaintiff must show Open Sesame is an unincorporated association before it can sue it under its common name.

Where a federal substantive right is claimed, a federal court must apply federal and not state law in determining what constitutes an unincorporated association for capacity purposes. F.R.C.P. 17(b), U.S.C.A.; Associated Students of the University of California at Riverside v. Kleindienst, 60 F.R.D. 65, 66-67 (C.D. Cal. 1973). Patent infringement is a federal substantive right. Therefore, federal law must be used to determine whether the Open Sesame Users Group is an unincorporated association. The U.S. Supreme Court has defined an unincorporated association as:

"a body of persons united without a charter, but upon the methods and forms used by incorporated bodies for the prosecution of some common enterprise." Hecht v. Malley, 265 U.S. 144, 157 (1923).

The Open Sesame Users Group does not fit this definition because it has none of the "methods and forms" used by corporations. An unincorporated association must be an organized group made from persons who become members voluntarily but subject to certain rules or by-laws. Members are customarily subject to discipline for violations or noncompliance with the rules of the association. See Yonce v. Miners Memorial Hospital Assn., 161 F.Supp. 178, 186 (W.D. Virginia 1958). Furthermore, a group will not be recognized as an unincorporated association unless it has a distinct, identifiable membership. See Motta v. Samuel Weiser, Inc., 598 F.Supp. 941, 949 (D.Maine 1984). In Motta, the court found that the secret fraternity known as Ordo Templi Orientis ("OTO") was not an unincorporated association because it was an "amorphous and attenuated" group without any authoritative criteria to define membership. This despite the fact that the fraternity had regular meetings, membership rituals, doctrines and appointed representatives. Id. at 943.

Similarly, Open has no centralized authority or distinct, identifiable membership. There are no rules for participating or mechanisms for restricting access or "membership." Indeed, anyone in the world with internet access and the proper newsreader software can become a "member" simply by accessing the site and reading or posting messages. An individual may post messages regularly or never access the site again. If a message posted is "off-topic" or otherwise inappropriate, there is no mechanism for disciplining the user for noncompliance.

In addition, membership in Open Sesame cannot be determined from old Usenet archives. Individuals who access the Usenet do not assent to membership in Open Sesame simply by posting email messages. In Johnson v. South Blue Hill Cemetery Assoc, 221 A.2d 280 (Me. 1966), the court held there was no unincorporated association where the necessary conditions upon which membership could be predicated were wanting. There, the purchase of a cemetery lot was insufficient to find assent to become a member of a cemetery association where no by-laws existed which defined or regulated membership eligibility. Id. at 283. Where no membership criteria are established, actions taken by a group participant are not sufficient to characterize such action as an assent on the part of the participant to become a member of the association and the rights and liabilities that usually arise from membership in such an association cannot be enforced. Id. (emphasis added). Likewise, those who posted messages to the Open Sesame Users group did not assent to becoming members of an association without some kind of objective criterion for membership. Indeed, there was no criteria of any kind for accessing Open Sesame. Anyone could access the Usenet to read or post messages. While some individuals provided inputs, others could just read the postings of others, ie, "lurking." None of these activities could be said to be assenting to membership. Because there were no conditions upon which membership in Open Sesame was predicated, membership is not sufficiently definite and determinate to form an unincorporated association.

Even if membership in Open Sesame could be ascertained at any given time, it would still be too informal and transitory to qualify as an incorporated association. In California Clippers v. U.S. Soccer Football Assoc., 314 F.Supp. 1057 (N.D. Cal. 1970), this Court held that the International Games Committee was not an unincorporated association because it lacked organizational form. Id. at 1068. Like the Committee in California Clippers, Open Sesame has no charter, by-laws or articles. It has no office, staff or place of business, no mailing address other than an internet URL, and no bank account, assets or obligations. The members of Open Sesame have never even met as a group. Therefore, it is not an unincorporated association.

A distinct purpose alone will not provide structure sufficient to qualify a group as an unincorporated association. While unincorporated associations have been found to exist even where a group lacked by-laws, other "methods and forms" used by corporations were present. The court in Project Basic Tenants Union v. Rhode Island Housing and Mortgage Finance Corp., 636 F. Supp. 1453 (D. R.I. 1986), found that a tenants union with no by-laws was an unincorporated association, and distinguished the Committee in California Clippers by pointing out that the tenants group had office space, funding, and a full-time staff person. Open Sesame has no office space, funding or employees. Therefore, it cannot be an unincorporated association.

Because Open Sesame is simply a Usenet site frequented by a loose and transitory collaboration of internet enthusiasts and not an unincorporated association, it is not a legal entity capable of being sued by Plaintiff.

To satisfy due process, the exercise of personal jurisdiction must comport with "traditional notions of fair play and substantial justice." International Shoe v. Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 160 (1945) (which quoted Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)).

Five factors have been used to determine the fairness and reasonableness of asserting personal jurisdiction: 1) Defendants’ burden of appearing, 2) California’s interest in adjudicating the dispute, 3) the Plaintiff’s interest in obtaining convenient and effective relief, 4) the judicial system’s interest in obtaining the most effective resolution of the controversy, and 5) the common interests of all sovereigns in promoting substantive social policies. See Burger King v. Rudzewicz, 471 U.S. 462, 477 (1985) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)).

Factor (1): The Open Sesame Usenet is accessible to anyone in the world with internet access. Other than Scape Goat, none of the defendants have been shown to live in the forum. Many undoubtedly reside outside the United States. Therefore, having to defend a potentially protracted lawsuit in California presents an incredibly large burden on these defendants and weighs heavily against the reasonableness of asserting jurisdiction. In addition, none of the defendants receive any remuneration from their work on Open that could help offset the costs of defending a suit in a distant forum.

Factor (2): Unlike more traditional infringement cases, there is no physical situs here. Rather, because the alleged infringement occurred over the internet, which has no physical boundaries, California has no interest that is stronger than any other forum (save perhaps Finland where the server is located). Nor is this a traditional case where witnesses and evidence needed for adjudication of the dispute are local.

Factor (3): Plaintiff’s alleged injury was not centered in California. While the Plaintiff’s headquarters is located in California, the plaintiff does business all over the world. Therefore, it would not be a significant burden for the Plaintiff to litigate this dispute in some other forum.

Factor (4): Dragging a lot of non-commercial defendants – who may be far away and/or foreign – into a forum with which they have no special connection, is neither efficient nor reasonable. Indeed, the most efficient resolution would be to proceed against the commercial entities that are selling the allegedly infringing GUI.

Factor (5): The Internet is a global phenomenon. As such, different countries each have their own interest in regulating Internet activity. Demanding jurisdiction over activities that take place entirely on the Internet can therefore subject defendants to double (or multiple) liability in different forums. This issue is particularly serious where non-commercial defendants are involved. In this case, the problem could be avoided if Closed confined its efforts to the domestic U.S. manufacturers who loaded the allegedly infringing Open GUI.

Based on these five factors, exercising personal jurisdiction over the defendants is not reasonable.

B. This Court Lacks Personal Jurisdiction Over DOES 1-1000 Because DOES 1-1000 Do Not

Have the Required Minimum Contacts With Calfifornia Such That Exercising Jurisdiction Would Be Reasonable

Before subjecting a non-resident defendant to personal jurisdiction, due process requires that the defendant have sufficient minimum contacts with the forum state such that maintenance of the suit does not offend "traditional notions of fair play and substantial justice." International Shoe Co, 326 U.S. at 216. In addition, the required minimum contacts must be purposeful, so that non-residents may anticipate being haled into court as a result of their activities. See Burger King, 417 U.S. at 472. Furthermore, the Plaintiff has the burden of showing that the Defendants purposefully availed themselves of the protections and benefits of the forum. See Carteret Savings Bank, FA v. Shushan, 954 F.2d 141, 146 (3rdCir. 1992) (holding that once defendant raises the defense of lack of personal jurisdiction, the plaintiff bears the burden of proving, by a preponderance of the evidence, facts sufficient to establish personal jurisdiction.)

Plaintiff alleges that the defendants purposefully availed themselves of the privilege of doing business in California due to the accessibility of the Open Sesame Users Group and the FTP server web page to anyone with internet access in California. While a majority of internet jurisdiction cases have focused on defendants’ activities on the web, the principles outlined are equally applicable to Usenets.

In determining whether there is purposeful availment such that it is reasonably foreseeable that an individual will be haled into court solely on the basis of internet activity, courts have generally looked to the following factors:

1. commercial v. noncommercial nature of the activity.

1. The Open Sesame Usenet is a "passive" site

Courts have declined to exercise jurisdiction where the only contact with the forum is through a "passive" web site that does little more than make information accessible to those who seek it. Indeed, the Ninth Circuit concluded that no court has ever held that an Internet advertisement alone was sufficient to subject a party to jurisdiction in another state. See Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418-19 (9thCir. 1997). The creation of a web site, "like placing a product into the stream of commerce, may be felt nationwide or worldwide but, without more, it is not an act purposefully directed toward the forum state." Bensusan Restaurant Corp. v. King, 937 F.Supp. 295, 301 (S.D.N.Y. 1996), aff’d, 126 F.3d 25 (2d Cir. 1997).

Posting messages to a Usenet is treated the same way as posting to a passive web site for the purpose of determining personal jurisdiction. Barrett v. Catacombs Press, 44 F.Supp. 2d. 717, 728 (E.D. Pa. 1999) (noting that, like a passive web site, membership in a Usenet is at the option of the individual user and anyone who is interested can become a member.) Id.

Personal jurisdiction based on Internet activity is directly proportionate to the nature and quality of the commercial activity conducted. Zippo, Mfg. Co. v. Zippo Dot Com., Inc, 952 F. Supp. 1119, 1124 (W.D. Pa. 1997). Personal jurisdiction is almost always held proper for those who clearly do business over theIinternet by entering into contracts with foreign residents and knowingly and repeatedly transmitting computer files. Id. See, e.g., CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6thCir. 1996) (where defendant sold software over the internet and entered into a distribution contract with forum resident). At the other end of the continuum are those who simply post information on a "passive" web site that does little more than make the information available to users in foreign jurisdictions. Zippo, 952 F.Supp. at 1124. No sufficient grounds exist for exercising personal jurisdiction in these types of cases. See also Bensusan Restaurant Corp. v. King, 937 F.Supp. 295 (S.D.N.Y. 1996) (holding that an advertisement on a passive web site was insufficient to trigger personal jurisdiction). In the middle are web sites where a user can exchange information with the host computer. Zippo, 952 F.Supp. at 1124. In such cases, the level of interactivity and commercial nature of the information being exchanged must be determined before personal jurisdiction can be exercised. Id.

In cases involving passive web sites where personal jurisdiction has been exercised, the courts have consistently found additional contacts directed at the forum. See, e.g., Panavision Intn’l. L.P. v. Toeppen, 141 F.3d 1316 (9thCir. 1998) (attempting to extort money from the Plaintiff, Defendant sent email and made telephone calls to the forum); Bochan v. La Fontaine, 1999 U.S. Dist. LEXIS 8253 (E.D.Va., May 26, 1999) (posting defamatory messages and soliciting business in the forum); Zippo Mfg. Co., 952 F.Supp. at 1126-27 (entering into contractual agreement via email); Compuserve, 89 F.3d at 1263 (entering into a contract with forum ‘choice of law’ provision); Hasbro, Inc. v. Clue Computing, Inc., 944 F.Supp. 34, 44 (D. Mass. 1997) (using web site to solicit additional commercial contacts with forum residents); Blumenthal v. Drudge, 992 F.Supp. 44 (D.D.C. 1998) (traveling to the forum to promote the web page). Here, the defendants never entered into any contract with anyone in California and never solicited additional contacts with forum residents. None of the defendants visited, telephoned or even emailed anyone in California. The Open Sesame Usenet is completely free and accessible to anyone with internet access. None of the defendants can control or restrict its access by residents in California or anywhere else. Therefore, the defendants have not acted to purposefully direct their activities toward California.

This approach is consistent with traditional minimum contacts analysis. See Asahi Metal Indus. Co., Ltd. v.Superior Court of Cal., 480 U.S. 102 (1987) (rejecting contention that placing a product in the stream of commerce is enough to establish personal jurisdiction). Similarly, mere fortuitous or unilateral conduct by a user in bringing the product into the forum does not meet the "purposeful availment" requirement. See World-Wide Volkswagon v. Woodson , 444 U.S. 286 (1980) (holding that a defendant’s contacts with the forum should be such that he should reasonably foresee being haled into court there). Id. at 297. Here, the defendants have no control over who accesses the Open Sesame Usenet and unilaterally brings it into the forum. Therefore, the existence of the Open Sesame Usenet, and the fact that anyone in California can unilaterally access it, does not support finding the defendants purposefully availed themselves of California.

2. The Open Sesame Usenet does not target California

Open Sesame is an unmoderated Usenet. Therefore, anyone on the internet can access the site and either post messages or simply read what others have posted. More importantly, no one can control the distribution of the Usenet messages. All messages are automatically forwarded to adjacent Usenet servers which in turn propagate them to additional servers. In Barrett, 44 F.Supp. 2d at 717, the court held that a defendant’s non-commercial postings on a Usenet were insufficient for establishing personal jurisdiction. Unlike more traditional activities such as the distribution of magazines where the distributor can affirmatively decide not to sell in certain forums, no such control exists over areas of delivery after posting to a Usenet. Id. at 728. Because there is no way for the defendants to limit distribution of the Open Sesame Usenet, the Defendants cannot be targeting California.

In addition to the Usenet servers, there are "mirror servers" that copy other web sites and Usenet content for local distribution. There are countless mirror servers located around the world. Although several such sites are known to exist in California, the Defendants have no control over them. Because the Defendants have no control over what the mirror servers decide to reproduce, they are not targeting California.

Likewise, the Open operating system itself is not targeted at California (or Views in particular). On the contrary, it is designed to be the most flexible, broadly applicable, and customizable it can be to allow users to modify it to fit their individual needs regardless of where they reside or what operating system they currently use. Therefore, the court’s decision in Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316 (9thCir. 1998) is distinguishable. In that case the defendant deliberately registered Panavision’s trademarks as domain names in an attempt to extort money from Panavision. Consequently, the defendant knew that his conduct would have the effect of injuring Panavision in California. The court applied the "effects doctrine" articulated in Calder v. Jones, 465 U.S. 783 (1984), where purposeful availment could be found if the defendant’s conduct was aimed at or had an effect in the forum state. Panavision, 141 F.3d at 1322. Indeed, the web site in Panavision had no commercial value in connection with any other forum except the Plaintiff’s since its sole purpose was to tie up the Panasonic domain name until Panavision paid the defendant’s price. In stark contrast, Open provides a very powerful and flexible OS that can be used worldwide, not just in California. Because Views is sold throughout the world, the injury cannot be said to be concentrated in California. Also, Open can be used to replace any operating system, not just Views. Therefore, the development of Open is not tortuous conduct aimed expressly at the forum.

In addition, the effects doctrine has been narrowly construed by most circuits. See, e.g., IMO Industries, Inc. v. Kiekert, 155 F.3d 254, 256 (3rdCir. 1998) (agreeing with First, Fourth, Fifth, Eighth, Ninth and Tenth Circuits in holding that jurisdiction under Calder requires more than finding that the harm is primarily felt within the forum. Also held that the holding in Panavision and Calder are limited to their facts (the unique relationship between the motion picture industry and the forum)). Id. at 265. The defendant must have expressly aimed his tortuous conduct at the forum such that the forum can be said to be the "focal point" of the tortuous activity. Id. Unlike the motion picture industry in Panavision, which provides a unique and concentrated market for film cameras, the Views operating systems are sold and used worldwide. Because Views is not uniquely related to California, California cannot be said to be the "focal point" for the alleged tortuous activity.

The effects doctrine is inapplicable in the present case. Although Open was initially developed as an alternative to Views, it does not target Views exclusively. While providing a better product inevitably results in some adverse effect to a competitor, this is not the type of activity required to trigger the effects doctrine. Because neither the Open product nor the Open Sesame Usenet targeted California, the second factor weighs against finding personal jurisdiction.

3. Defendants’ participation on the Open Sesame site was not commercial activity

This case does not involve any commercial activity. None of the defendants have received any remuneration for their participation in the Open Sesame Usenet. Indeed, there has been no sales activity at all -- Open remains free and downloadable to anyone with internet access.

This is in stark contrast to most cases where personal jurisdiction for web-based activity has been found. In the vast majority of these cases, the defendants were engaged in some kind of commercial activity over the web. See, e.g., Compuserve, Inc. v. Patterson, 89 F.3d 1257 (6thCir. 1996) (defendant entered into a contract to sell software over the Internet); Maritz v. Cybergold, Inc., 947 F.Supp. 1328 (E.D. Mo. 1996) (advertising subscriptions to its mailing list); Zippo Mfg. Co. v. Zippo Dot Com., Inc., 952 F.Supp. 1119 (W.D. Pa. 1997) (holding personal jurisdiction should be exercised in proportion to the quality and nature of the commercial activity exercised over the internet). Because the defendants in the present case did not engage in any commercial activity, most other authorities are distinguishable in determining whether internet activities alone can support a finding of personal jurisdiction.

IV

THIS COURT DOES NOT HAVE PROPER VENUE OVER DEFENDANTS DOES 1-1000 AND OPEN SESAME

28 U.S.C. Section 1400(b) states that "any civil action for patent infringement may be brought in the judicial district where the defendant resides or where the defendant has committed acts of infringement and has a regular and established place of business."

A. This Court Does Not Have Proper Venue Over Does 1-1000 Under 28 U.S.C. Section 1400(b)

For individual defendants in a patent infringement case, Section 1400(b) is the exclusive provision for determining venue. Therefore, for venue to be proper in this court, the Plaintiff must show that each of the Does 1-1000 either: 1) resides in the Northern District of California, or 2) has committed acts of infringement and established a regular place of business here.

Closed has been unable to show that any Open user other than Scape Goat resides in this district. Anyone with internet access can download the Open source code from the FTP server in Finland, and can do so from anywhere in the world. The individuals who participate on the Open Sesame users group are also geographically anonymous. Therefore, the Plaintiff has not met the first test for establishing venue for Does 1-1000.

Similarly, even if Plaintiff’s assertion that Open infringes Views was true, the Northern District of California would still not be a proper venue under the second test, which requires that defendants "establish a regular place of business" in the district. Here, the Plaintiff has failed to show any presence whatsoever of Does 1-1000 in the district. Furthermore, the mirror server at Stanford cannot provide the basis for a regular and established place of business because it is not within the defendants’ control. No commercial activity or economic benefits flow back to the Open Sesame users from the mirror servers. Also, there is no contractual agreement or funding between the owner of the Stanford mirror server and any of the Defendants. Therefore, the Defendants cannot be said to have established a regular place of business in the Northern District of California.

If Plaintiff succeeds in arguing that Open Sesame is an unincorporated association, section 1400(b) is supplemented with 1391(c) to determine proper venue. See VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574 (Fed. Cir 1990); see also Denver R.G.W.R. Co. v. Brotherhood of R.R. Trainmen, 387 U.S. 556 (1967) (holding 1391(c) applies to unincorporated associations). 28 U.S.C. Section 1391(c) states:

Because there is no separate venue analysis under 1391(c), venue is only proper if this court can exercise personal jurisdiction over Open Sesame. To establish personal jurisdiction, the Plaintiff has the burden of showing, by a preponderance of the evidence, that Open Sesame purposefully availed itself of the protections and benefits of the forum. See Carteret Savings Bank, 954 F.2d at 146. Under the same reasons discussed in Part III supra, the Open Sesame Usenet does not constitute purposeful availment of the benefits and protections of the Northern District of California such that the exercise of personal jurisdiction would comport with Due Process. Therefore, venue is also improper.

V.

SERVICE OF PROCESS ON DEFENDANTS DOES 1-1000 AND OPEN SESAME

WAS IMPROPER

A. Service of Process on DOES 1-1000 Was Improper

To constitute valid service of process, two tests must be met. First, service must meet the constitutional standard of "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1952). Second, the notice must conform to the applicable rule or statute governing the method of service. See Marshall v. State, 544 N.Y.S.2d 437 (Ct. Cl. N.Y. 1989).

Failure to comply with the rule-based requirement invalidates service. See, e.g., Magnuson v. Video Yesteryear, 85 F.3d 1424, (9th Cir. 1996) (holding service by Federal Express defective when rule stated that such papers had to be served personally or by "mail"); Erbacci, Cerone and Moriarty, Ltd. V. United States, 166 F.R.D. 298 (S.D. N.Y. 1996) (faxing not authorized service). But see Calabrese v. Springer Personnel, 534 N.Y.S. 2d 83 (Civ. Ct. 1988) (permitting service by fax under N.Y. law given widespread use and reliability of fax machines). On the rare occasion that an alternative method of service has been allowed, the court usually granted it only when service pursuant to the statute was impossible and where the defendant had actual notice but was actively evading service. See, e.g., New England Merchants National Bank v. Iran Power Generation and Transmission Co., 495 F. Supp. 73 (S.D. N.Y. 1980) (allowing service via telex because political unrest made it impossible to serve process on defendants who had actual notice of action but were avoiding service.) Here, there is no evidence to suggest that the defendants had actual notice or were attempting to evade service.

Courts have rejected alternative methods of service not specifically authorized by statute, even where the opposing party received actual notice. See Marshall, 544 N.Y.S.2d. at 546. Therefore, even if the Defendants had actual notice, the alternative methods of service employed by the Plaintiff in this case do not constitute proper service.

No courts in the United States have recognized email as a proper method of service. Indeed, this Court recently held that email is not a sufficient form of service for complying with F.R.C.P. 4. See Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 1999 U.S. Dist. LEXIS 12652 at *16 (N.D. Cal. 1999). Other courts have reached the same conclusion. See, e.g., Wawa, Inc. v. Christensen, 1999 U.S. dist. LEXIS 11510 at *4 (E.D. Pa. 1999) (stating that electronic mail is not an approved method of service under FRCP 4). Therefore, service by email is not a proper method of service.

In addition, Closed did not know who it was sending the email messages to when it emailed copies of the complaint and summons to addresses listed in the Usenet archive. Indeed, many of the messages were returned as undeliverable, demonstrating how unreliable this method is. This attempted "service by spam" cannot constitute proper service of process because it is not reasonably calculated to provide actual notice.

Furthermore, even if email could constitute valid service by mail, it would not be proper in this case. Cal. Code Civ. Proc. 415.30, which governs service of residents by mail, only authorizes the plaintiff to mail the defendant a request for waiver of service. It does not authorize service by mail per se. In the absence of the Defendants’ written waiver, the plaintiff must serve the Defendants in a different way. Here, the plaintiff sent email messages to some of the Defendants who had email addresses listed on the Open Sesame Usenet archive, not knowing where these defendants reside. If any of these defendants resides in California, the email message will not constitute proper service for that individual.

While Cal. Code Civ. Proc. 415.40 allows service by mail upon individuals located outside the state, a return receipt is required. So even if service by email was allowed by courts, which it is not, it would not constitute valid service under 415.40 unless a return message was available. While the plaintiff may argue that the "mail undeliverable" message provides such a function, this argument is not convincing. The undeliverable messages are sent only for those messages that can not be delivered - no such notice is sent when an email message is not returned. Furthermore, even if an email is not bounced back to the sender, there is no way of ascertaining who ultimately received the message without some kind of return receipt. Just as real mail or faxes can be delivered to the wrong place due to typos or misrouting, so too can email messages. It is because of this possibility that return receipts are required for regular mail in the first place. The return receipt usually carries the signature of the person accepting delivery so the success of service may be ascertained. No such signed declaration of delivery is present here. Therefore, Plaintiff’s emailing of copies of the summons and complaint to unknown email addresses from the Usenet archive did not constitute proper service.

Service by publication is authorized only where the court finds that the party to be served cannot with reasonable diligence be served in any other manner. Cal. Code of Civ. Proc. 415.50(a). Section 415.50 says that "except as otherwise provided by statute, the publication shall be made as provided by Section 6064 of the Government Code…." The specific requirements for publication of notice are determined by Government Code sections 6060-6066. Section 6060 states:

Government Code Section 6000 defines a "newspaper of general circulation" as a newspaper published for the dissemination of local or telegraphic news and intelligence of a general character, which has a bona fide subscription list of paying subscribers, and has been established, printed and published at regular intervals in the State, county or city where publication, notice of publication, or official advertising is to be given or made for at least one year preceding the date of the publication, notice or advertisement.

OpenSource is exclusively an internet newsletter. Unlike more traditional print media, it is not disseminated to a list of subscribers. Although some internet publications can only be accessed by paying subscribers, OpenSource is open to anyone who wishes to access it. Therefore, there is no set list of subscribers, and definitely not a list of "paying subscribers" as required by Section 6000. Therefore, OpenSource is not a newspaper of general circulation as required for proper service by publication under Section 6060.

Furthermore, OpenSource is not "established, printed and published at regular intervals in the State, county, or city where publication, notice by publication, or official advertising is to be given." While the Plaintff may argue that OpenSource is published at regular intervals because it can be accessed from the internet at any time, this is a misinterpretation of the requirement. While a traditional print magazine may be purchased 24 hours a day in some convenience stores, this does not automatically mean that the magazine is published at regular intervals. This criterion is determined by how often new issues are produced and disseminated in the area where notice is to be given. Unlike traditional print media, internet newsletters may be updated continuously throughout a week, a day, or even an hour and be instantaneously available to anyone in the world with internet access. Such volatile and unpredictable content changes do not meet the "regular intervals" requirement of Section 6060. Therefore, the OpenSource newsletter does not fall within Cal. Civ. Proc. 415.50.

Even if OpenSource did meet the requirements of Gov’t Code Section 6000, service of process in this case would still be improper. Cal. Civ. Proc. Section 417.10(b) requires proof of service by publication pursuant to 415.50 be made by "affidavit of the publisher or printer, or his foreman or principal clerk, showing the time and place of publication … ." The OpenSource newsletter has no publisher, printer, foreman or clerk. Therefore, service by posting to OpenSource is not proper.

Cal. Civ. Proc. Section 413.30 authorizes the court to order alternative methods of service "reasonably calculated to give actual notice" only where service cannot be effected under any other provision of the Code.

Posting a copy of the summons and complaint to the Open Sesame Usenet does not meet the due process requirement of being "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1952). To be served, an individual would have to access the Open Sesame Usenet and open the message containing the copy of the complaint and summons. New visitors would thus be "served" even though they had never participated in the Usenet before and some long-time members would not receive notice if they did not visit the site in a timely manner. Messages posted on Usenets are automatically removed after a time to make room for new messages. Furthermore, the propagation of messages from a Usenet server to adjacent servers is not always reliable. Because there is no way to know with any degree of certainty whether the notice has reached a defendant (or rather, the defendant has reached the notice), posting notice on a Usenet is not reasonably calculated to provide actual notice and cannot constitute valid service.

B. Service of Process on Open Sesame Was Improper

Because Open Sesame is not an unincorporated association, it is not an entity that can be sued or served under F.R.C.P. 17(b). Rule 17(b) states that an "unincorporated association … may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States."

Even if Open Sesame was an unincorporated association; however, service of process was improper. F.R.C.P. 4(h) states:

There is no officer or agent authorized by appointment or law to receive service for Open Sesame. Membership is unrestricted, unlimited and transitory. While a small group of developers incorporate changes into the Open baseline, the identity of these individuals is unknown, and there is no indication that the same individuals perform the duties each time. So even if Plaintiff succeeds in arguing that Open Sesame is an unincorporated association, service of process was not proper.

VI.

CONCLUSION

For all the foregoing reasons, Defendants respectfully submit that this Motion to Dismiss be granted in its entirely with prejudice.