Case 1:23-cv-21894-FAM Document 35 Entered on FLSD Docket 01/24/2024 Page 1 of 7
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`UN ITED STA TES D ISTRICT COU RT FO R TH E
`SO U TH ERN D ISTRICT OF FLORID A
`M iam i D ivision
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`C ase N um ber: 23-21894-C1V -M 0 % N 0
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`W ORLD YEDIA ALLIANCE LABEL INC.,
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`Plaintiff,
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`VS.
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`B ELIEVE SA S,
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`D efendant.
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`O R DE R G M N TIN G D EFEN DA N T 'S-M OTION TO DISM ISS FOR LACK OF
`PER SO NA L JU R ISD ICTIO N
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`THIS CAUSE cam e before the Court upon Defendant's M otion to Dism iss for Lack of
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`Personal Jurisdiction (D.E. 22), filed on pctob-er- 30, 2023. This five-count copyright
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`infringem ent case initiated as an action betw een W orld M edia A lliance against Believe SA S,
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`YouTube, and Google. In August 2023, W orld M edia Alliance voluntarily dism issed YouTube
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`and Google, pursuant to a stipulation with the then-Defendants. Remaining in the litigation is
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`Believe, a French digital music company. W orld M edia Alliance is a Sunny lsles Beach-based
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`com pany that has contractual rights with musical artists and groups, owning the rights to the use
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`of certain m aterials. At dispute in this case is the content of a Russian music group' called Tender
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`May (founded in. 1986).
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`A. Tender M ay
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`1. Backsround
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`Tender M ay is a cult Soviet and Russian pop group in Orenburg, Russia. Tender M ay's
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`genres fall under Eurodisco, tin pop, and synthpop categories.The first teenage m usical group in
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`the Soviet Union had unprecedented popularity in the USSR, then in Russian and other Republics
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`N
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`that were previously part of the USSR, with both the young and adult audiences. At its peak in
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`the late 1980s, Tender M ay was able to gather stadium s of 40,000 - 60,000 people and set records
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`for the num ber of concerts per day.
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`Tender M ay is associated with a singer, composer, m anager, and producer named M drei
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`R azin, who f'unded the group until it becam e and self-supporting.Plaintiff W orld M edia A lliance
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`is affiliated with R azin under contracts, and W orld M edia A lliance claim s to hold copyright to
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`Tender M ay's audio and video recordings as a result of its affiliation with Razin. lt thus claim s
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`that the copyright to the artistic w orks in question is controlled by the term s of the D igital
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`M illennium Copyright Act, thereby m aking W orld M edia Alliance the designated copyright agent
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`for Tender M ay and Razin. Defendant Believe, how ever, argues that Tender M ay, as a band, never
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`transferred rights to any of its perform ances to Razin. In 2022, Russian courts decided that Razin
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`in fact had no ownership rights in any of Tender M ay's w orks. In Believe's view, ownership rights
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`to the subject songs are still being litigated in Russian courts and are in direct conflict with W orld
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`M edia A lliance's claim s of ownership in the United States.
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`B. Factual Issues
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`W hat lies at the core of the issue in this case is that Believe listed fol-tp four of Tender
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`M ay's works on YouTube, which- in W orld M edia Alliance's view infringed its alleged
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`copyright ownership in the works. W orld M edia Alliance asserts that its intellectual property
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`assets were Gsinfringed, usurped, and attacked'' and seeks injunctive relief and damages. W orld
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`M edia Alliance's five-count claim against Believe is for $11,000,000. The first is an injunction
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`under 17 U .S. Code Chapter 5 for copyright infringem ent and rem edies, claim ing it w ill suffer
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`irreparable damages.l The second is a claim for damages under 17 U.S.C. j 504 based on a
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`precedent in a pending case in New York. The third is a claim for costs and attorney fees lmder
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`17 U.S.C. j 505. The fourth claim was stated against previous defendants YouTube and Google
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`only and is, thus, no longer relevant. The fifth elaim is for interference with beneficial business
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`relationships, asserting that Believe infringed copyrights, usurped the rights to post recordings,
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`and violated statutes in the United States, thereby interfering with W orld M edia Alliance's
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`beneficial business relationship w ith Tender M ay and Razin.
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`ll. Issue
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`First, Believe argues that the Complaint fails to establisll personal jurisdiction under
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`Florida's long-arm statute or Fourteenth Amendm ent Due Process. Second, it asserts that the
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`Court should dism iss, or in the alternative stay, W orld M edia Alliance's claim s pursuant to
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`international abstention doctrine.
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`111. A nalvsis re: Personal Jurisdiction
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`Neither party disputes whether the Coul't has subject mattezjurisdiction over the claims, as
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`they arise under 17 U.S.C. Chapter 5, satisfying Stfederal question''jurisdiction. There also exists
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`Eddiversity jurisdiction,'' as W orld Media Alliance is a Florida company and Believe is a French
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`cop oration. However, the Court must also have personal jurisdiction over the parties in the case
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`because tsgaj court without personal jurisdiction is powerless to take f'urther action.'' Posner v.
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`Essex Ins. Co., L td , 178 F.3d 1209, 1214 n.6 (1 1th Cir. 1999); see also Read v. Ulmer, 308 F.2d
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`915, 917 (5th Cir. 1962) (:ç1t would seem elementary that if the court has no jurisdiction over a
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`defendant, the defendant has an unqualified right to have an order entered granting its m otion to
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`dismiss.''). Because Believe is a nomvsident defendant, W orld M edia Alliance must establish a
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`1 A disclaimer was m ade that the links to the videos has been deactivated as though the video
`m aterial had been rem oved, but it m ay have then later been reactivated again.
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`prima facie case of personaljurisdiction and tspresentg) enough evidence to withstand a motion for
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`directed verdict.'' See M adara v. Hall, 916 F.2d 1510, 1514 (1 1th Cir. 1990).
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`In the Complaint, W orld M edia Alliance merely states Gçrjqurisdiction is proper,'' while
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`acknowledging that Believe çshas no registration in Florida'' and is based out of France. Further, .
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`it asserts that venue is proper because CIW M A , a Florida cop oration, has copyright, and
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`infringement of their rights has effect in Florida, where W M A is depriyed of a portion of their
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`revenues.'' However, this incomplete assertion of personal jurisdiction does not establish the
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`requisite prima facie case of personaljurisdiction ovez a nonresident defendant.
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`I(A federal court sitting in diversity undertakes a twq-step inquiry in determ ining whether
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`personal jurisdiction exists: the exercise of jtlrisdiction must (1) be appropriate under the sta' te
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`long-arm statute and (2) not violate the Due Process Clause of the Fourteenth Amendmentg.j''
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`Carmouche v. Tamborlee Mgmt, lnc. , 789 F.3d 1201, 1203-04 (1 1th Cir. 2015) (quoting United
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`Techs. Corp. v. M azer, 556 F.3d 1260, 1274 (1 1th Cir. 2009:. A defendant can be subject to
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`personal jurisdiction under Florida's long-arm statute in two ways. First, Fla. Stat. j 48.193(1)(a)
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`lists acts tsthat subject a defendant to specsc personal jurisdiction that is, jurisdiction over suits
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`that arise out of or relate to a defendant's contacts with Floridag.j'' ld at 1204. Second, Fla. Stat.
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`j 48.193(2) provides that (Tlorida courts may exercise general personal jurisdiction that is,
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`jurisdiction over any claims against a defendant, whether or not they involve the defendant's
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`activities in Florida if the defendant engages in çsubstantial and not isolated activity' in Florida.''
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`1d
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`(a) Specifc Personal Jurisdiction
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`Under Florida's long-arm stamte, an entity is subject to personal jurisdiction if it
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`Consistent with the state'sCsgcjomitgsj a tortious act within this state.'' Fla. Stat. j 48. 193(1)(a)(2).
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`long-ann statute, specific personal jurisdiction ttconcenzs a nonresident defendant's contacts with
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`Florida only as those contacts related to the plaintiff s cause of action.'' f ouis Vuitton M alletier,
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`S.A. v. Mosseri, 736 F.3d 1339, 1352 (11th Cir. 2013) (empbasis added). In other words, for the
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`Court to find a tstorrtious act,'' the plaintiff m ust plead sufficient facts to show that a tortious act-
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`copyright infringement, here- was comm itted in the state of Florida. To do so, at a m inimum ,
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`W orld M edia Alliance m ust demonstrate that the m aterial at issue was both accessible in Florida
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`and actually accessed by people in the state. lnternet Solutions Corp. v M arshall, 39 So. 3(1 1201,
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`1215 (F1a. 2010), an internet-based defnmation case, is instructive on this issue. There, the Florida
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`Supreme Coul't found that Ctgbjy poàting allegedly defamatoly material on the W eb about a Florida
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`resident, the poster . . . directed the comm unication about a Florida resident to readers worldwide,
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`including potential readers within Florida.'' Id Further, ûirwqhen the posting is then accessed by a
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`third party in Florida, the material has been dpublished' in Florida and the poster has communicated
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`the m aterial çinto' Florida,'' the tortious act of defnmation has occurred within Florida. Id
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`Here, no specific allegations regarding accessibility or publication within the state of
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`Florida have been plead. M ere access to an infringing work online in a state is not suffcient for
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`personaljurisdiction without more. See Jackson-Bear Group, lnc. v. Amirjazil, No. 2: IO-CV 332-
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`FTM -20, 201 1 W L 1232985, at *6 (M .D. Fla. M ar. 30, 201 1) (dismissing a case onjurisdictional
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`grounds because the m ere posting of an infringing document on a website without m ore is not
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`sufficient to demonstrate the . . . defendants purposefully aimed their activity toward Florida). As
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`the Eleventh Circuit has made clear, Ctgsqpecific jurisdiction under j 48.193(1) trequires a
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`cormection or connexity between the enum erated activity in Florida alad the cause of action.'''
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`Knep-fle v. J-Tech Corporation, 48 F.4th 1282, 1291 (1 1th Cir. 2022) (quotingWcgf.ç De# nse Servs.,
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`L L C v. Gilbert, 222 So. 3d 656, 661 (Fla. 5th DCA 2017) (internal quotations omittedl).
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`Additionally, the plaintiff must (taver'' that the tortious activity tGwas specscally directed to Florida
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`residents.'' Aegis Defense Servs. , 222 So. 3d at 659 (emphasis added). No such allegations were
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`m ade in the pleadings in this case. W orld M edia Alliance also attem pted to use UM G Recordings,
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`Inc. v. Kurbanov, 963 F.3d 344, 344 (4th Cir. 2020), to show that a norlresident defendant can be
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`subject to personal jurisdiction in the home state of the plaintiff in a copyright case. However, in
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`that case, the Foul'th Circuit repeatedly notes that the activities at issue were Gpulposefully directed
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`toward the forum state'' to suffice for personal jurisdiction. No such purposeful directing towards
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`Florida occun'ed here. Therefore, specific pezsonal jurisdiction over Believe does not exist.
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`(b) General Personal Jurisdiction
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`General personal jurisdiction stems from a Ccdefendant's substantial activity in Florida
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`without regard to where the cause of action arose.'' f ouis Vuitton M alletier, u%A. , 736 F.3d at 1352.
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`CGA defendant who is engaged in substantial and not isolated activity within Floridaq . . . is subject
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`to thejurisdiction of gits) courts . . . whether or not the claim arises f'rom that activity.'' Fla. Stat. j
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`48.193(2). In other words, the defendant must have engaged in (ûcontinuous and systematic general
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`business contact'' with Florida. Snow v. Direcly Inc., 450 F.3d 1314, 1318 (11t1& Cir. 2006) (citing
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`Woods v, Nova Cos. Belize L td , 739 So. 2d 617, 620 (Fla. 4th DCA 1999:.Here, nowhere in the
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`Complaint does W orld M edia Alliance allege how or why Florida is the appropriate jurisdiction,
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`besides asserting that the company itself suffered dnm ages in Florida- not that Florida courts have
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`any jurisdiction over Believe. As a matter of fact, Believe is not located in Florida, nor does it
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`OWn Property 0r regularly conduct business in ltlorida. Further, W orld M edia Alliance itself
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`aclcnow ledges that Believe liis a French type business entity registered in France,'' (çenacted under
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`the French lawr'' and çshas no registration in Florida.'' Thus, a Ecsubstantial'' contact between
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`Believe and Florida does not exist.
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`(c) Due Process
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`If jurisdiction were appropriate under the long-arm statute, a Due Process analysis would
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`be necessary to enstlre that jurisdiction does not violate' the Fou/eenth Amendment. However,
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`because neither specific nor general personal jurisdiction is present, a Due Process analysis is not
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`necessary.
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`lV . C onclusion
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`In conclusion, It is AD JU D G ED that the m otion is GR AN TED . Believe is a French
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`corporation registered in France with no specific ties with Florida. W orld M edia Alliance did not
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`allege w ith particularity that Believe specifically directed any potentially tortious conduct to the
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`state of Florida. Further, Believe's contact w ith the state of Florida if any w as not Glsubstantial''
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`to give rise to general personal jurisdiction. W ithout specific or general personal jurisdiction over
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`it, the case against Believe is dismissed for lack of personal jurisdiction.
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`D ON E AN D ORD ERED in Cham bers at M iam i, Florida, this
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`W2-% of January 2024.
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`FEDE O . O REN O
`UN IT D ATES D ISTRICT JUD GE
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`Copies furnished to:
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`Counsel of Record
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