AMA to Seek En Banc Review of ePorner Infringement Ruling

LAS VEGAS—The 9th U.S. Circuit Court of Appeals on Monday rejected AMA Multimedia LLC’s attempt to hold the operator of adult tube site ePorner.com liable for copyright and trademark claims for content allegedly poached and uploaded to its site. In today's ruling, a majority in a federal appeals panel, 2-1, agreed with a lower court’s decision, which found it didn’t have jurisdiction over defendant Marcin Wanat, who operates ePorner and ePornerGay, both based in Poland. Marc Randazza, an industry attorney for Las Vegas-based AMA Multimedia, told AVN that the adult entertainment company plans to challenge Monday’s decision and file an en banc session to be heard by all of the 9th Circuit’s judges. “We are seeking to provide an excellent blueprint for companies that find foreign companies stealing their content,” Randazza said. “Stealing content from America and selling it back to America.” After being sued by AMA Multimedia several years ago for infringement at Arizona federal court, Wanat filed a motion to dismiss for lack of personal jurisdiction. In his defense, Wanat claimed that AMA Multimedia — an operator of more than 20 porn membership sites, including Passion-HD.com, Tiny4K.com and PornPros.com — couldn’t prove that his company targeted economic activity toward the U.S. under the Calder “effects test,” which determines personal jurisdiction. In order for a defendant to be subject to personal jurisdiction under Calder, a defendant must commit an intentional act that is expressly aimed at the forum state and causes actual harm that the defendant knows is likely to be suffered in the forum state. Wanat contended that the market for adult content is global, evidenced by the fact that 80 percent of ePorner’s viewers were outside the U.S. AMA Multimedia, however, had argued that Wanat expressly aimed ePorner at the U.S. market, as evidenced by use of geotargeted ads and purported corresponding U.S. revenue; ePorner’s terms of service, referred to as a “contractual agreement” under U.S. laws; and the use of the U.S.-based domain registrar Tiggee. But a majority in the federal appeals panel agreed with Wanat’s contention on personal jurisdiction and said in its decision that “ePorner’s content is primarily uploaded by its users, and the popularity or volume of U.S.-generated adult content does not show that Wanat expressly aimed the site at the U.S. market.” The panel’s decision in the appeal, which was reviewed de novo, included a dissent by Judge Ronald Gould, who said that the facts indeed show that Wanat and ePorner aimed their advertising business at the U.S. market. “[F]orcing Wanat to litigate in the U.S. would almost certainly impose substantial burdens on him and raise sovereignty and efficiency concerns,” Gould wrote. “Wanat has purposefully interjected himself in the forum by operating a website that continuously and deliberately exploited the U.S. market, and the U.S. has a strong interest in enforcing federal intellectual property laws and providing redress for injuries felt within its borders.” Randazza, who plans to file papers for the en banc request within two weeks, said that Gould’s decision was “far well more reasoned.” ePorner’s counsel was unavailable for comment by AVN post time.