Harry Palmer v. Eldon Braun

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 13, 2004
No. 03-13963
THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 00-01662 CV-ORL-31-JGG

HARRY PALMER,
STAR'S EDGE, INC.,

Plaintiffs-Appellees,

versus

ELDON BRAUN,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(July 13, 2004)

Before EDMONDSON, Chief Judge, TJOFLAT and COX, Circuit Judges.

PER CURIAM:

Eldon Braun appeals the judgment entered for Harry Palmer and Star’s Edge,

Inc., after a bench trial in this action for copyright and trademark infringement, unfair
competition, breach of contract, intentional interference with a business relationship,

and libel. We affirm.

I. BACKGROUND AND PROCEDURAL HISTORY1

Braun was Palmer’s student in the Avatar course, an educational course Palmer

authored and conducted to teach others how to explore and master their own

consciousness. Palmer conducted the Avatar course under the auspices of Star’s

Edge. The Avatar course materials were copyrighted, and Avatar students and

instructors were required to sign an agreement to keep confidential the contents of the

Avatar course materials. Braun became an instructor in the Avatar course. But, after

a falling-out with Palmer, Braun left the Avatar program and began doing some

writing of his own.

Braun published articles designed to discredit Palmer. And, soon after severing

his relationship with Palmer and Star’s Edge, Braun began drafting a competing

course in consciousness, which he entitled The Source Course. He drafted most of

his materials while living in the United States, but ultimately finished drafting The

Source Course in Paris, France. He marketed the course on the internet, using a

website maintained in the United States, touting his course as an analog of Avatar and

1
For a more detailed background of this case, see Palmer v. Braun, 287 F.3d 1325 (11th Cir.
2002), where we affirmed the district court’s denial of a preliminary injunction in this case.

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a take-home manual for Avatar graduates to use in refreshing their skills. He sold at

least 25 copies of The Source Course to residents of the United States, and shipped

these copies from France to the United States.

Palmer and Star’s Edge saw The Source Course as a plagiarism of the Avatar

course, and they sued Braun under federal law for copyright infringement, trademark

infringement, and unfair competition, as well as under several state-law theories.

Braun moved to dismiss the complaint for improper venue, or, in the alternative, to

change venue. The district court denied Braun’s venue motion, and held a bench

trial. Following trial, the court entered judgment for Palmer and Star’s Edge on their

II. ISSUES ON APPEAL

We address three of the issues Braun raises on appeal. First, whether the

federal courts have subject matter jurisdiction over Plaintiffs’ copyright claim.

Second, whether Braun’s venue motion was sufficient to preserve for appellate

review the issue of personal jurisdiction. And third, whether the district court erred

when it denied Braun’s motion to dismiss for lack of venue or to change venue.2

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Braun also attacks the district court’s judgment on the merits, contending that (1) the
Plaintiffs failed to prove that he infringed their copyright, and (2) that the Plaintiffs’ copyright claim
should be defeated by the affirmative defense of misrepresentation to the copyright office. These
contentions have no merit. The district court committed no error in concluding that Braun, in writing
The Source Course, copied Palmer’s original explanations, metaphors, analogies, personal advice,
and observations contained in the Avatar materials. And, Braun failed to include the affirmative

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III. CONTENTIONS OF THE PARTIES AND STANDARDS OF REVIEW

Braun contends that the district court lacked subject matter jurisdiction over

Palmer’s copyright claim because all of Braun’s allegedly-infringing activities

occurred outside the United States. Palmer and Star’s Edge contend that a sufficient

amount of Braun’s infringing activities took place in the United States to support

federal copyright jurisdiction. Whether the district court had subject matter

jurisdiction is a question of law which we review de novo. Damiano v. F.D.I.C., 104

F.3d 328, 332 (11th Cir. 1997).

Braun contends that in his venue motion, he objected to the district court’s

jurisdiction over his person. He argues that the venue motion raised the issue because

venue and personal jurisdiction are based on many of the same factors, and because

in their response to the motion, Plaintiffs argued that the district court had personal

jurisdiction over Braun. Plaintiffs maintain that Braun waived his objection to a lack

of personal jurisdiction.

Finally, Braun contends that the district court erred in denying his motion to

dismiss for lack of venue or to change venue because he did not reside in the Middle

District of Florida, nor did a substantial portion of the events giving rise to the claim

defense in either his answer or the pretrial order, and therefore waived it. Jackson v. Seaboard Coast
Line R.R. Co., 678 F.2d 992, 1012 (11th Cir.1982). Indeed, Braun even stipulated before trial that
Plaintiffs had complied with the copyright laws in all respects. (R.4-108 at 7.)

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occur in the Middle District of Florida. Plaintiffs contend that the Middle District of

Florida was a proper venue. We review for abuse of discretion a district court’s

denial of a motion to transfer or dismiss for lack of venue. Robinson v. Giarmarco

& Bill, P.C., 74 F.3d 253, 255 (11th Cir. 1996).

IV. DISCUSSION

A. Subject Matter Jurisdiction

Title 28, U.S.C., Section 1338 gives the district courts original jurisdiction over

civil actions arising under federal copyright law. Plaintiffs brought their copyright

claims in the district court pursuant to the federal Copyright Act, 17 U.S.C. § 501.

But, federal copyright law has no extraterritorial effect, and cannot be invoked

to secure relief for acts of infringement occurring outside the United States.

Subafilms, Ltd. v. MGM-Pathe Communications, 24 F.3d 1088, 1091 (9th Cir. 1994)

(en banc); Update Art, Inc. v. Modiin Pub., Ltd., 843 F.2d 67, 73 (2d Cir.1988) (“It

is well established that copyright laws generally do not have extraterritorial

application.”). Thus, it is only where an infringing act occurs in the United States that

the infringement is actionable under the federal Copyright Act, giving the federal

courts jurisdiction over the action. Sheldon v. Metro-Goldwyn Pictures Corp., 106

F.2d 45, 52 (2d Cir. 1939) (Learned Hand, J.) (holding that the Copyright Act gave

the federal court power over profits made from showing a copied film outside the

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United States, where the negatives from which the film was printed were made in the

United States, as the Copyright Act protects an author’s right to make a transcription

or recording from which the work can be reproduced); P & D Int’l v. Halsey Pub. Co.,

672 F. Supp. 1429, 1432-33 (S.D. Fla. 1987) (finding subject matter jurisdiction over

copyrighted film in Florida and then showed the film in international waters aboard

cruise ship, as “to the extent that part of an ‘act’ of infringement occurs within this

country, although such act be completed in a foreign jurisdiction, those who

contributed to the act within the United States may be liable under U.S. copyright

law”; citing 3 M. Nimmer, Nimmer on Copyright, § 17.02 at 17-5).

Where a person imports an infringing work into the United States, the federal

courts have jurisdiction over the action for infringement because:

Section 106 of Title 17 grants the owner of a copyright the exclusive
rights "to do and to authorize" certain acts, among which are the
reproduction and distribution of the copyrighted work. The distribution
right includes the right to import copies of the work.

GB Marketing USA Inc. v. Gerolsteiner Brunnen GmbH & Co., 782 F. Supp. 763,

772-73 (W.D.N.Y. 1991) (citing 2 Melville B. Nimmer & David Nimmer, Nimmer

on Copyright § 8.11[B] (1990)). In GB Marketing, the court found subject matter

jurisdiction over a bottled water distributor’s copyright infringement action against

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a foreign bottler: though the bottler applied the labels to bottles in Germany, the

labels were specifically designed for marketing in the United States, the bottles were

packaged for shipment to the United States, and the bottler sold them to a company

which imported them to the United States. Id. Thus, the importation of the infringing

work is an infringing act occurring in the United States.

Here, the court found that Braun imported over 25 copies of The Source Course

into the United States, to sell them to customers. Braun does not contend that this

finding was clearly erroneous. This is sufficient to support federal copyright

jurisdiction, as it was done in the United States, and as 17 U.S.C. § 106(3) outlaws

distributing copies of copyrighted materials. Thus, the district court had subject

matter jurisdiction over this case.

B. Personal Jurisdiction

Before answering the complaint, Braun filed a three-page “Motion to Dismiss

or for Change of Venue.” (R.1-13.) In the motion, he did not once use the words

“personal” or “jurisdiction,” and the whole substance of his motion was directed at

venue. Nonetheless, he now contends that he raised the issue of personal jurisdiction,

and that the court erred by stating in its post-trial order that he did not contest

personal jurisdiction. He argues that the district court lacked personal jurisdiction,

and thus that the district court’s judgment should be vacated.

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It is well-settled that lack of personal jurisdiction is a waivable defect, and that

a defendant waives any objection to the district court’s jurisdiction over his person

by not objecting to it in a responsive pleading or a Fed. R. Civ. P. 12 motion.

Lipofsky v. New York State Workers Comp. Bd., 861 F.2d 1257, 1258 (11th Cir.

1988). It is also well-settled that we do not consider the issue of personal jurisdiction

raised for the first time on appeal. Gen. Trading Inc. v. Yale Materials Handling

Corp., 119 F.3d 1485, 1496 n.22 (11th Cir. 1997).

A review of the motion at issue shows clearly that it was a motion challenging

venue, and not personal jurisdiction. Though venue and personal jurisdiction involve

some of the same factors, a motion challenging venue is not effective to preserve the

issue of personal jurisdiction. Guardian Title Co. v. Sulmeyer, 417 F.2d 1290, 1292

(9th Cir. 1969) (holding that defendant’s motion challenged venue and was therefore

insufficient to preserve for appeal the issue of personal jurisdiction); Branic v.

Wheeling Steel Corp., 152 F.2d 887, 888 (3d Cir. 1945) (same).

Braun points out that the Plaintiffs’ response to his motion discussed personal

jurisdiction, and argues that the Plaintiffs understood him to raise the issue. The

district court did not interpret the venue motion as raising an objection to personal

jurisdiction. Thus, we look to Braun’s papers and pleadings alone to determine

whether he objected to the district court’s jurisdiction over his person. See Fed. R.

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Civ. P. 12(g) & (h) (stating that a party who fails to object to personal jurisdiction in

the first of either his answer or Rule 12 motion waives the objection); Fed. R. Civ. P.

7(b)(1) (“[a]n application to the court for an order shall be by motion which . . . shall

state with particularity the grounds therefor . . .”); Davis v. Hill Eng’g, Inc, 549 F.2d

314, 324-25 (5th Cir. 1977) (holding that defendant waived his objection to service

of process by not stating it with particularity in his motion challenging venue under

the Jones Act, 46 U.S.C. § 688). Because Braun’s motion clearly raised only venue,

and not personal jurisdiction, we conclude that he waived any objection to the court’s

jurisdiction over his person.

C. Venue

Plaintiffs advanced several theories of recovery in their complaint, invoking

the district court’s federal question and diversity jurisdiction, under 28 U.S.C. §§

1331 and 1332, as well as the court’s jurisdiction over copyright claims under 28

U.S.C. § 1338. They pleaded facts in support of the district court’s venue over all the

actions. In his motion challenging venue, Braun contended only that the Middle

District of Florida was not the proper venue to decide the copyright claim, as the

venue requirements of 28 U.S.C. § 1400(a) were not met. On appeal, he argues that

the facts of the case were facially insufficient to support a § 1400(a) venue.

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A civil suit to enforce the Copyright Act may be brought in any district “in

which the defendant or his agent resides or may be found.” 28 U.S.C. § 1400(a). A

defendant “may be found” in a district in which he could be served with process; that

is, in a district which may assert personal jurisdiction over the defendant. Milwaukee

Concrete Studios v. Field Mfg. Co., 8 F.3d 441, 445-46 (7th Cir. 1993) (holding that

venue was proper in a district to which a corporation and an individual had imported

a copyright-infringing sculpture, as that district would have personal jurisdiction over

them based on the state’s long-arm statute); Payne v. Kristofferson, 631 F. Supp. 39,

44 (N.D. Ga. 1985); Foxworthy v. Custom Tees, Inc., 879 F. Supp. 1200, 1207 (N.D.

Ga. 1995).

Here, Braun appeared before the district court without contesting the court’s

jurisdiction over his person or his amenability to process in the district. By his

consent to personal jurisdiction, Braun was “found” in the Middle District of Florida

for purposes of § 1400(a) venue. Thus, the district court did not abuse its discretion

in denying his venue motion.

V. CONCLUSION

The district court properly had subject matter jurisdiction over the copyright

claim brought by Palmer and Star’s Edge. Braun consented to the district court’s

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jurisdiction over his person; thus, the Middle District of Florida was a proper venue

for the copyright action.

AFFIRMED.