FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

AMA MULTIMEDIA, LLC, a Nevada No. 18-15051 limited liability company, Plaintiff-Appellant, D.C. No. 2:15-cv-01674- v. ROS

MARCIN WANAT, a foreign citizen; MACIEJ MADON, a foreign citizen; OPINION MW MEDIA, a foreign corporation, Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding

Argued and Submitted June 11, 2019 Submission Withdrawn December 20, 2019 Resubmitted August 10, 2020 San Francisco, California

Filed August 17, 2020

Before: Ronald M. Gould, Sandra S. Ikuta, and Ryan D. Nelson, Circuit Judges.

Opinion by Judge R. Nelson; Concurrence by Judge Ikuta; Concurrence by Judge R. Nelson; Dissent by Judge Gould

2 AMA MULTIMEDIA V. WANAT

SUMMARY *

Personal Jurisdiction

The panel affirmed the district court’s dismissal for lack of personal jurisdiction of a copyright infringement, trademark infringement, and unfair competition action.

Defendant, a citizen and resident of Poland, operated ePorner, an adult video website, through MW Media, a Polish civil law partnership. Plaintiff contended that defendant was subject to specific personal jurisdiction in the United States because he expressly aimed tortious conduct at the forum.

Applying Federal Rule of Civil Procedure 4(k)(2), known as the “federal long-arm statute,” the panel held that the exercise of personal jurisdiction would not comport with due process because defendant lacked the requisite minimum contacts with the United States. The panel concluded that defendant committed intentional acts by establishing and maintaining ePorner, registering two domains, and entering into an agreement with an American domain name server, but he did not expressly aim his suit- related conduct at the United States.

The panel also held that the district court did not abuse its discretion by limiting the scope of plaintiff’s jurisdictional discovery on the basis of privacy concerns. The panel declined to consider, for the first time on appeal,

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

AMA MULTIMEDIA V. WANAT 3

a European Commission decision, known as the “Privacy Shield Decision,” which established that Member States, including Poland, could transfer personal data to certain organizations in the United States. The panel also declined to consider the European Parliament’s enactment of the General Data Protection Regulation, which repealed and replaced Poland’s Personal Data Protection Act after this appeal was filed.

Concurring in the majority opinion in full, Judge Ikuta wrote that because the district court lacked personal jurisdiction over defendants, it had authority only to remove the case from its docket.

Concurring, Judge R. Nelson wrote that the district court was not precluded from exercising its discretion on remand to consider intervening law in any supplemental request for jurisdictional discovery or amendment of the complaint.

Dissenting, Judge Gould wrote that, taking the undisputed facts alleged by plaintiff as true and resolving any factual disputes in its favor, defendant targeted his economic activity toward the United States under the Calder “effects test.” In addition, plaintiff’s claims arose out of or related to defendant’s forum-related activities, and it was reasonable to exercise personal jurisdiction over defendant. Accordingly, Judge Gould would hold that the United States had personal jurisdiction over defendant.

COUNSEL

Marc J. Randazza (argued) and Ronald D. Green, Randazza Legal Group PLLC, Las Vegas, Nevada, for Plaintiff- Appellant.

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Jakub P. Medrala (argued), The Medrala Law Firm PLLC, Las Vegas, Nevada, for Defendants-Appellees.

OPINION

R. NELSON, Circuit Judge:

AMA Multimedia, LLC (“AMA”) appeals the district court’s dismissal of its copyright infringement, trademark infringement, and unfair competition action against Marcin Wanat for lack of personal jurisdiction. We agree with the district court that AMA has not met its burden of showing that Wanat is subject to personal jurisdiction in the United States. We also conclude that the district court did not abuse its discretion by denying AMA certain jurisdictional discovery and decline to consider arguments about changes in European law for the first time on appeal that bear on AMA’s entitlement to additional jurisdictional discovery. We therefore affirm.

I

Plaintiff AMA is a Nevada limited liability company that produces and distributes “adult entertainment over the Internet.” AMA owns several online websites where paying customers can view AMA’s materials. AMA’s videos are copyrighted as audiovisual works and display the company’s trademark in the corner of the screen.

AMA discovered that ePorner.com (“ePorner”)—an internationally available website which hosts adult videos and allows users to search for, select, and watch them—was displaying AMA’s copyrighted works. At the time this suit was filed, ePorner allowed users to upload adult videos anonymously. ePorner does not charge visitors; instead, it

AMA MULTIMEDIA V. WANAT 5

generates revenue solely through advertising. ePorner contracts with a third-party advertising company that chooses the advertisements. The advertiser then “geolocates” the advertisements, meaning visitors to ePorner.com see advertisements based on their perceived location. For example, visitors thought to be in the United States see selected advertisements in English, while visitors thought to be in France see selected advertisements in French.

AMA was unable to determine who owned and operated ePorner, so, in 2015, AMA sued all defendants as Doe Defendants and Roe Corporations in the United States. The district court permitted AMA to conduct early discovery to ascertain who owned the domains epornergay.com and eprncdn.com, both of which forwarded visitors to ePorner.com. That early discovery revealed that two companies located in Arizona, GoDaddy.com and Domains by Proxy, were used to register the domains and privatize the owner’s identity. AMA subpoenaed both companies and learned that Defendant Marcin Wanat was the registrant of the domains. AMA amended its complaint and named Wanat as a defendant. ^[1]

Wanat is a citizen and resident of Poland. Wanat and Madon are partners in MW Media, a Polish civil law partnership which owns and operates ePorner. Through MW Media, Wanat assists in the operation of ePorner. Although The Privacy Shield Decision was implemented after the parties completed their briefing to the Special Master and before the Special Master’s Report and Recommendation. But AMA never raised this change in law to the Special Master, to the district court, in its motion for reconsideration, or in opposition to Wanat’s renewed motion to dismiss. Again, Wanat’s expert had provided notice that a change in the European privacy laws was under consideration at the time the parties were briefing the issue to the district court and AMA had both notice and opportunity to raise this issue before the case was dismissed. Despite failing to raise the issue below or in its initial briefing, AMA claims in its supplemental brief that we should consider this new argument because the applicability of the new law is a pure question of law and Wanat will not be prejudiced by its consideration. We are not persuaded.

First, we reject AMA’s argument regarding the Privacy Shield Decision because it is unrelated “to the case shaped by the parties.” Id. at 1582. Although “[t]here are no doubt circumstances in which a modest initiating role for a court is

AMA MULTIMEDIA V. WANAT 25

appropriate,” id. at 1579, such circumstances are not present here. AMA had numerous opportunities to raise the Privacy Shield decision but did not do so until we ordered supplemental briefing.

Second, the proper vehicle for raising this issue would have been through a supplemental notice to the Special Master or the district court, or even in a motion for reconsideration before final judgment, not by raising it for the first time on appeal. See D. Ariz. R. LRCiv 7.2(g)(1) (Motions for Reconsideration) (2015) (motions for reconsideration should show “manifest error or a showing of new facts or legal authority that could not have been brought to [the court’s] attention earlier with reasonable diligence”); see also Rentrop v. Spectranetics Corp., 550 F.3d 1112, 1117 (Fed. Cir. 2008) (“[W]hen there is a relevant change in the law before entry of final judgment, a party generally must notify the district court; if the party fails to do so, it waives arguments on appeal that are based on that change in the law.”); Douglas Asphalt Co. v. QORE, Inc., 657 F.3d 1146, 1152 (11th Cir. 2011) (adopting the analysis of Rentrop to find that plaintiff’s failure to file a motion for reconsideration to notify the district court before entry of final judgment waives arguments on appeal based on the change in law).

Third, no exceptional circumstances warrant application of the Privacy Shield Decision to AMA’s argument for additional jurisdictional discovery. “A party’s unexplained failure to raise an argument that was indisputably available below is perhaps the least ‘exceptional’ circumstance warranting our exercise of this discretion.” G & G Prods. LLC v. Rusic, 902 F.3d 940, 950 (9th Cir. 2018). Moreover, application of the Privacy Shield Decision is not a pure question of law. Whether the Privacy Shield Decision would

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weigh in favor of permitting additional jurisdictional discovery depends on whether AMA is a self-certified organization under the Privacy Shield Decision, which is plainly a factual question. For the same reason, resolving this issue in AMA’s favor would prejudice Wanat because AMA is asking for remand to develop the factual record as to whether AMA satisfied the Privacy Shield Decision’s self-certification requirements. See Raich, 500 F.3d at 868. In sum, we decline to take up the application of the Privacy Shield Decision for the first time on appeal. See El Paso City, 217 F.3d at 1165.

Similarly, before AMA filed its opening brief in this appeal—and after AMA had already been granted two extensions to file its opening brief—the European Parliament repealed and replaced the PDP with the GDPR. Although AMA had the opportunity to bring this change to our attention its opening or reply brief, it did not do so. This was raised for the first time after we withdrew submission of this case and specifically requested briefing on potential waiver and the impact of the Privacy Shield Decision.

Consistent with “the principle of party presentation,” Sineneng-Smith, 140 S. Ct. at 1579, we decline to consider AMA’s untimely argument regarding the GDPR. In particular, we are not persuaded that we should entertain this argument where the party that could benefit from the new law did not raise it in its briefs, although it had notice and opportunity to do so, and only discussed it in a supplemental brief filed at our request. See Brown v. Rawson-Neal Psychiatric Hosp., 840 F.3d 1146, 1148–49 (9th Cir. 2016) (“[A]ppellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal

AMA MULTIMEDIA V. WANAT 27 questions presented and argued by the parties before them.”) (internal quotation marks omitted).

In addition, since the GDPR replaced the PDP, any consideration of the GDPR would necessarily require an analysis of how the GDPR and the Privacy Shield Decision interrelate. We have already declined to consider the Privacy Shield Decision, which further counsels against analyzing the GDPR. Finally, as previously discussed, AMA has not claimed or presented evidence that it has satisfied either the Privacy Shield Decision or the GDPR’s requirements for receiving personal data. See supra at IV.B.^[1].

V

AMA has not shown that Wanat purposefully directed his suit-related conduct at the United States. Nor did the district court abuse its discretion in denying AMA jurisdictional discovery. And we decline to consider new arguments that AMA raises for the first time in response to our order for supplemental briefing, and which implicate facts not in the record. We therefore affirm.

AFFIRMED.

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IKUTA, Circuit Judge, concurring:

I concur in the majority opinion in full. I write separately to clarify the posture of this case in light of our decision.

Today we hold that the district court did not err in granting Wanat’s motion to dismiss for lack of personal jurisdiction. We also affirm the district court’s denial of AMA’s motion for additional jurisdictional discovery and its entry of final judgment against AMA.

And that means this case is over. When a court lacks personal jurisdiction over a defendant, it has no “authority to bind a . . . defendant to a judgment,” Walden v. Fiore, 571 U.S. 277, 283 (2014), and must dismiss the case against the defendant, see, e.g., id. at 281. The defendant is not “amenable to proceedings,” Int’l Shoe Co. v. Washington, 326 U.S. 310, 311 (1943), and is shielded from “the burdens of litigating” in that forum, World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980). Congress has provided one exception to this general rule: a court that lacks personal jurisdiction over a defendant may transfer the case to another district court where the case “could have been brought.” 28 U.S.C. § 1406(a); see Goldlawr, Inc. v. Heiman, 369 U.S. 463, 465 (1962). This exception is not applicable here; there is no place where this case could have been brought because Wanat lacks sufficient contacts with the United States as a whole. See Maj. Op. at 21.

In his concurrence, Judge Nelson suggests that “perhaps the door remains slightly open for further proceedings on remand.” Conc. at 29. The dissent agrees. Dissent at 33 n.1. But neither Judge Nelson nor the dissent cites any statute or judge-made rule authorizing a district court to exercise power over a party in the absence of personal jurisdiction. Because the district court lacks personal jurisdiction over

AMA MULTIMEDIA V. WANAT 29

Wanat, it now has the authority to do only one thing: remove this case from its docket in accordance with its ordinary procedure.

R. NELSON, concurring: I write separately to address potential issues left open in light of our decision to affirm the district court’s order dismissing the complaint. While the presumption may be that our decision fully resolves this case, perhaps the door remains slightly open for further proceedings on remand. See Hampton v. Pac. Inv. Mgmt. Co., 869 F.3d 844, 846 (9th Cir. 2017) (“Dismissals for lack of subject-matter jurisdiction . . . must be without prejudice, because a lack of jurisdiction deprives the dismissing court of any power to adjudicate the merits of the case.”) (citation omitted). We hold that the district court did not abuse its discretion when it denied certain jurisdictional discovery to AMA. We also decline to exercise our discretion to review AMA’s new legal claims, raised for the first time on appeal, regarding the impact of intervening foreign law on its jurisdictional discovery requests. I do not understand our opinion, however, to preclude the district court from exercising its discretion on remand to consider intervening law in any supplemental request for jurisdictional discovery or amendment of AMA’s complaint. As we discuss, changes in European law—specifically, the Privacy Shield Decision and GDPR—may have opened the door for companies based in the United States to obtain personal data that may not have previously been available under the PDP. 30 AMA MULTIMEDIA V. WANAT On remand, the district court may wish to allow AMA to amend its complaint or request additional briefing to consider whether the Privacy Shield Decision and GDPR have altered the analysis on available jurisdictional discovery. ^[1] To be sure, the current record is silent whether AMA could benefit through self-certification under the Privacy Shield Decision or the GDPR. And AMA has provided no evidence on appeal that it has self-certified. However, these are issues that the district court may wish to evaluate on remand. If additional jurisdictional discovery is ordered, Wanat’s contacts with the United States may be shown to be more significant than the current record demonstrates. For example, ePorner refused to produce any of its advertising agreements. Wanat’s expert stated he could not conclusively determine that ePorner only used “ad networks rather than more directly negotiating with advertisers in addition to the ad network.” Evidence that Wanat negotiated with advertisers directly may reveal whether he intended to target U.S. users. Similarly, evidence that Wanat engaged Tiggee for the purpose of targeting U.S. forum residents may affect the analysis as well. The extent of these contacts could also affect the reasonableness analysis. If the district court does decide that additional jurisdictional analysis is warranted on remand, one additional issue—and potentially a threshold one for 1 Assuming AMA followed the self-certification procedures, I would be concerned with an interpretation of either the Privacy Shield Decision or the GDPR that would wholly prevent Wanat from producing jurisdictionally relevant “personal data.” Significant safeguards are available for producing even the most sensitive and confidential data. Moreover, Wanat’s counsel at oral argument agreed Wanat would comply with a discovery order, notwithstanding the GDPR. AMA MULTIMEDIA V. WANAT 31 jurisdictional discovery—may be considered. AMA argues that MW Media’s and Madon’s U.S. contacts may be imputed to Wanat because MW Media is a civil law partnership between Wanat and Madon, which, under Polish law, has no legal personality and cannot be sued. Therefore, AMA claims that because Wanat is jointly liable for the debts and obligations of the partnership, any contact by the partnership may be attributed to Wanat for jurisdictional purposes. This could become an important issue impacting what jurisdictional discovery is relevant and what contacts may support the court’s jurisdiction over Wanat. We previously considered whether a partnership’s contacts could be imputed to a partner for jurisdictional purposes in Sher v. Johnson, 911 F.2d 1357, 1365 (9th Cir. 1990), and held that a Florida law firm’s contacts with California could not be attributed to its individual partners. Like AMA’s argument here, “[t]he Shers contend[ed], without benefit of case support, that because the liability of the partnership would establish the joint and several liability of each individual partner, . . . jurisdiction over the partnership establishes jurisdiction over the partners.” Id. (internal citation omitted). We disagreed, explaining, “[l]iability and jurisdiction are independent” and “[r]egardless of their joint liability, jurisdiction over each defendant must be established individually.” Id. Relying on the general rule that “[f]or purposes of personal jurisdiction, the actions of an agent are attributable to the principal,” we held that “because each partner acts as an agent of the partnership when carrying on the business of the partnership,” “[t]he contacts of the partners may establish jurisdiction over the partnership.” Id. at 1362, 1366. However, the inverse is not ordinarily true. “[W]hile each partner is generally an agent of the partnership for the 32 AMA MULTIMEDIA V. WANAT purpose of its business, he is not ordinarily an agent of his partners.” Id. at 1366. “Thus, a partner’s actions . . . ordinarily may not be imputed to the other partners.” Id. We did not, however, foreclose the possibility that a forum’s partnership law may create an agency relationship between partners. In such circumstances, the general rule would apply and a partnership’s contacts with a forum may be attributed to its partners. If further proceedings on jurisdiction occur, the district court should determine whether Polish law creates an agency relationship between partners and other persons such that the contacts of Madon or MW Media may be imputed to Wanat and whether such a ruling would impact jurisdictional discovery or the jurisdictional analysis. GOULD, Circuit Judge, dissenting: Our precedents establish that we have the authority to exercise personal jurisdiction over a defendant who has, among other things, expressly aimed his tortious conduct at the United States. That authority allows us “to hold [a defendant] answerable . . . for the contents of a website whose economic value turns, in significant measure, on its appeal to [forum residents].” Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1230 (9th Cir. 2011). In determining whether there is jurisdiction, we may infer from “[t]he fact that [a defendant’s] advertisements targeted [forum] residents . . . that [the defendant] knows—either actually or constructively—about [the forum’s] user base, and that it exploits that base for commercial gain by selling space on its website for advertisements.” Id. AMA MULTIMEDIA V. WANAT 33 Here, Defendant-Appellee Marcin Wanat operates a website, ePorner.com, which prior to this suit attracted nearly 20% of its user base and, as a result, substantial advertising profits from the United States market; utilized domain name servers (DNS) of a United States company that specifically brands itself as increasing internet speeds in the United States; and employed Terms of Service that invoked the protections of United States law. If we take the undisputed facts alleged by Plaintiff-Appellant AMA Multimedia as true and resolve any factual disputes in its favor—as we must—Wanat has targeted his economic activity toward the United States and may properly be haled into court here. The majority, in reaching the contrary conclusion, unduly restricts the authority of United States courts to hold alleged, foreign tortfeasors to account and incorrectly curtails our established precedents. I respectfully dissent. ^[1] 1 Because I would hold that there is already personal jurisdiction over Wanat, I do not here opine on the majority’s decision to affirm the denial of further jurisdictional discovery without considering arguments raised for the first time on appeal. However, like the view expressed in Judge Nelson’s separate concurrence, I do not doubt that the district court has discretion on remand to grant AMA leave to amend its complaint or to conduct further jurisdictional discovery in light of changes in international law. The district court may wish to do so in recognition of courts’ greater discretion to consider questions of foreign law not initially raised by the parties, given “the peculiar nature of the issue of foreign law.” See Fed. R. Civ. P. 44.1 advisory committee’s note to 1966 adoption. Especially in a case such as this, with important interests of the United States’ ability to enforce domestic intellectual property rights at stake, there are good reasons to ensure that the appropriate international law is applied. See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1475 (9th Cir. 1992) (one factor in international disclosure disputes is “the extent to which noncompliance with the [discovery] request would undermine important interests of the United States”). 34 AMA MULTIMEDIA V. WANAT I Because the majority summarizes most of the key facts, I reiterate only those most relevant to the personal jurisdiction analysis. First, Defendant Marcin Wanat is a Polish citizen and partner in MW Media, S.C., which owns and operates the adult video website ePorner.com. Allegedly, ePorner.com has infringed copyrighted materials of Plaintiff AMA Multimedia, which is a Nevada limited liability company. After being sued by AMA in the District of Arizona, Wanat filed a motion to dismiss for lack of personal jurisdiction. Although no facts in the current record show that Wanat directly conducts activity within the United States, it is undisputed that ePorner.com’s most important commercial market is the United States: 19.21% of its website traffic comes from the United States, while Germany makes up the second largest market, comprising 13.67% of the website traffic. No other country accounts for more than 6% of the traffic to the site. In turn, ePorner.com’s business model turns solely on advertising profits, and it uses third parties to geolocate advertisements based on a visitor’s perceived location. Because of the higher premiums placed on U.S.- focused advertising, the U.S. market likely makes up an even greater proportion of ePorner.com’s profits than its user base would suggest. While ePorner.com now stores its videos on a server in the Netherlands, before this suit it principally used the domain name servers of U.S.-based Tiggee LLC, which claims to provide the fastest internet speeds in the eastern United States and second fastest in the western United States. Also, ePorner.com’s Terms of Service as of 2015 stated that the website content was “owned by and/or licensed to Eporner, subject to copyright and other AMA MULTIMEDIA V. WANAT 35 intellectual property rights under United States, Canada and foreign laws and international conventions.” After denying certain jurisdictional discovery, the district court dismissed the suit for lack of personal jurisdiction, and AMA appealed. II We review de novo a district court’s dismissal for lack of personal jurisdiction. Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064, 1067 (9th Cir. 2017). Where the determination of personal jurisdiction is “based on written materials rather than an evidentiary hearing, [a plaintiff] need only make a prima facie showing of jurisdictional facts.” Martinez v. Aero Caribbean, 764 F.3d 1062, 1066 (9th Cir. 2014) (quoting Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004)). “Uncontroverted allegations in the complaint must be taken as true, and factual disputes are construed in the plaintiff’s favor,” Freestream Aircraft (Bermuda) Ltd. v. Aero Law Grp., 905 F.3d 597, 602 (9th Cir. 2018), so long as the plaintiff does not “simply rest on the bare allegations of its complaint,” Schwarzenegger, 374 F.3d at 800 (quoting Amba Mktg. Sys., Inc. v. Jobar Int’l, Inc., 551 F.2d 784, 787 (9th Cir. 1977)). III Personal jurisdiction under the federal long-arm statute, Federal Rule of Civil Procedure 4(k)(2), must comport with due process; in this instance, where specific jurisdiction is at issue, the defendant must have “minimum contacts” with the forum of the United States, and the exercise of jurisdiction must not be unreasonable. Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 462 (9th Cir. 2007) (“The due 36 AMA MULTIMEDIA V. WANAT process analysis under Rule 4(k)(2) is nearly identical to traditional personal jurisdiction analysis with one significant difference: rather than considering contacts between [the defendant] and the forum state, we consider contacts with the nation as a whole.”); see Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The familiar requirements for specific jurisdiction are as follows: (1) the defendant must either “purposefully direct his activities” toward the forum or “purposefully avail[] himself of the privileges of conducting activities in the forum”; (2) “the claim must be one which arises out of or relates to the defendant’s forum- related activities”; and (3) “the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.” Axiom, 874 F.3d at 1068 (quoting Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002)). The majority correctly identifies the “effects test” derived from Calder v. Jones, 465 U.S. 783 (1984) as the appropriate standard by which to gauge whether Wanat purposefully directed his activities toward the United States. Under the effects test, “the defendant allegedly must have (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.” Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1228 (9th Cir. 2011) (quoting Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1128 (9th Cir. 2010)). The majority also correctly holds that Wanat committed an intentional act for purposes of jurisdiction. The majority then goes astray, however, by concluding that Wanat did not expressly aim his conduct toward the United States, and that mistake defeats jurisdiction. Our precedents dictate otherwise, so I would hold that there is personal jurisdiction over Wanat. AMA MULTIMEDIA V. WANAT 37 A A defendant who operates a passive website “expressly aims” at a forum if he engages in “conduct directly targeting the forum.” Mavrix, 647 F.3d at 1229. 2 We have held that this requirement was satisfied when a defendant “continuously and deliberately exploited” the forum’s market for commercial gain, by operating “a website whose economic value turns, in significant measure, on its appeal to [forum residents].” Id. at 1230; accord Keeton v. Hustler Mag., Inc., 465 U.S. 770, 781 (1984) (“Where, as in this case, [the defendant] has continuously and deliberately exploited the New Hampshire market [by selling magazines], it must reasonably anticipate being haled into court there . . . based on the contents of its magazine.”). In other words, express aiming is present where a defendant “anticipated, desired, and achieved a substantial [U.S.] viewer base.” Mavrix, 647 F.3d at 1230. Here, there should be little question that these conditions are satisfied. As in Mavrix, ePorner.com’s business model depends on “selling advertising space on its website to third- party advertisers: the more visitors there are to the site, the more hits that are made on the advertisements; the more hits that are made on the advertisements, the more money that is paid by the advertisers to [ePorner.com and Wanat].” Id. ePorner.com’s ads are geolocated to the perceived location 2 It is worth noting that ePorner.com is more than a purely passive website because it has interactive features that “that involve the knowing and repeated transmission of computer files over the Internet,” Mavrix, 647 F.3d at 1226 (quotations omitted), and “visitors must agree to certain terms and conditions” in order to make full use of the site, UMG Recordings, Inc. v. Kurbanov, 963 F.3d 344, 353 (4th Cir. 2020). In any event, regardless of whether the site is passive, interactive, or semi- interactive, jurisdiction is proper here. 38 AMA MULTIMEDIA V. WANAT of its visitors, and at nearly 20% of the website’s traffic, the United States audience is “substantial” and in fact makes up a larger proportion of ePorner’s user base than any other country, by a significant margin. “[I]mmaterial [of] whether the third-party advertisers or [ePorner and Wanat] targeted [United States] residents,” “[t]he fact that the advertisements targeted [U.S.] residents indicates that [ePorner] knows—either actually or constructively—about its [U.S.] user base, and that it exploits that base for commercial gain by selling space on its website for advertisements.” Id.; see also Kurbanov, 963 F.3d at 348, 353–54 (in finding jurisdiction, reasoning that “[w]hile [the defendant] outsourced the role of finding advertisers for the Websites to brokers, the fact remains that he earns revenues precisely because the advertising is targeted to visitors in [the forum]” through “geolocation” or “geo-targeting”). This is especially true where, as here, ePorner has contracted with a U.S.-based DNS company that specifically markets itself as providing fast internet speeds in the United States. 3 The straightforward conclusion is that the United States “audience is an integral component of [ePorner’s] business model and its profitability,” and that “it does not violate due process to hold [ePorner or Wanat] answerable in a [U.S.] court for the contents of a website whose economic value turns, in significant measure, on its appeal to [U.S. residents].” Mavrix, 647 F.3d at 1230. 3 ePorner also used Terms of Service that invoked the protections of United States copyright and trademark law. While the cursory reference to U.S. law in these Terms would not be sufficient on its own to establish express aiming, it lends further support to the conclusion, in conjunction with the rest of the website’s operations, that ePorner’s contacts with the United States were more than merely “random, isolated, or fortuitous.” Keeton, 465 U.S. at 774. AMA MULTIMEDIA V. WANAT 39 The majority resists this conclusion by seeking to distinguish Mavrix from the present case and throwing up roadblocks that can be found nowhere in our precedents— and that, in some instances, flatly contradict our precedents. Among other things, the majority suggests that personal jurisdiction is improper because Wanat and ePorner lacked a “forum-specific focus,” noting that “the market for adult content is global.” See Maj. Op. at 16–17. But it is well- established that no forum-specific requirement exists. In Keeton, the Supreme Court held that New Hampshire had personal jurisdiction over a national magazine even though the magazine distributed fewer copies in that state than others and even though “the bulk of the harm done to [the plaintiff] occurred outside New Hampshire.” 465 U.S. at 780. Because the magazine “continuously and deliberately exploited the New Hampshire market . . . [t]here is no unfairness in calling it to answer for the contents of that publication.” Id. at 781. Similarly, our own court has stated that so long as “a jurisdictionally sufficient amount of harm is suffered in the forum . . . , it does not matter that even more harm might have been suffered in another [forum].” Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199, 1207 (9th Cir. 2006) (en banc) (per curiam); see also Mavrix, 647 F.3d at 1230–31 (finding jurisdiction in California despite the fact that the defendant more generally “sought and attracted [a] nationwide audience[]”). Here, the market for adult content is not uniquely and exclusively American, but Wanat should nonetheless be held accountable in a United States court because he has “continuously and deliberately exploited” the U.S. market. See Keeton, 465 U.S. at 781. The majority misreads Mavrix. Mavrix did not hold that personal jurisdiction is proper only when a website has a 40 AMA MULTIMEDIA V. WANAT unique appeal in the forum, nor did it depend fundamentally on the website’s forum-specific subject matter, as the majority contends, see Maj. Op. at 16–17. Rather, in Mavrix, “[t]he record [did] not reflect how many of the website’s visitors are California residents.” 647 F.3d at 1222. In light of that absence, we focused on the subject matter of the website (celebrity gossip) as evidence that the website had significant appeal in the California forum. Id. at 1230. We then considered that subject matter along with “the size and commercial value of the California market”—not with the unknown size and commercial value of the website’s California user base—to infer that “[t]his audience is an integral component of [the defendant’s] business model and its profitability.” Id. Unlike Mavrix, we need not rely on the subject matter of ePorner.com as evidence from which to infer the site’s appeal in the forum: The record directly shows that ePorner.com appeals to a significant U.S. audience and that it contracts with a U.S.-based DNS company which markets itself as providing faster internet speeds to U.S. users. To hold that there is no express aiming here is to construe the facts in the light least favorable to the plaintiff and to blind ourselves to the clear inference that ePorner “knows—either actually or constructively—about its [U.S.] user base, and that it exploits that base for commercial gain by selling space on its website for advertisements.” Id. 4 4 Nor is there truth in the majority’s rejoinder that finding jurisdiction here would mean that “ePorner could be said to expressly aim at any forum in which a user views the website.” Maj. Op. at 19. This contention ignores the fact that a defendant must have “anticipated, desired, and achieved a substantial [forum] viewer base,” Mavrix, 647 F.3d at 1230 (emphasis added), and that its contacts cannot be merely “random, isolated, or fortuitous,” Keeton, 465 U.S. at 774. Exercising jurisdiction where, as here, the United States is the most AMA MULTIMEDIA V. WANAT 41 The majority apparently grounds its reluctance to make this plain inference, in part, on Walden v. Fiore, 571 U.S. 277 (2014), by reasoning that foreseeability of harm to the plaintiff in the forum cannot alone establish minimum contacts and that only the defendant’s own contacts with the forum can provide the basis for jurisdiction. See Maj. Op. at 17–19 & n.6. These propositions are undeniably true. They are also beside the point. First, foreseeability of harm to the plaintiff principally relates not to the express aiming analysis, but to the third prong of the effects test—whether the defendant “caus[ed] harm that the defendant knows is likely to be suffered in the forum.” Mavrix, 647 F.3d at 1228. Although individualized targeting “will not, on its own, support the exercise of specific jurisdiction” after Walden, it is still “relevant to the minimum contacts inquiry.” Axiom, 874 F.3d at 1070. Indeed, that is the only way that the second and third prongs of the effects test do not entirely collapse into each other. Second, Walden stands for the proposition that a defendant may not simply rely on a plaintiff’s contacts with the defendant and the forum to establish personal jurisdiction. Walden, 571 U.S. at 289. That principle of due process, however, does not make a defendant immune from suit when the “‘effects’ of the alleged [tortious conduct] connect[] the defendant[] to [the forum], not just to the plaintiff.” Id. at 287. The majority elides this important distinction, asserting that, “[t]o find specific jurisdiction based on [users in the forum receiving targeted advertisements] would run afoul of the Supreme Court’s directive in Walden and ‘impermissibly allow[] a plaintiff’s integral market to the defendant’s profitability will not result in the majority’s “sky-is-falling” scenario. 42 AMA MULTIMEDIA V. WANAT contacts with the defendant and forum to drive the jurisdictional analysis.’” Maj. Op. at 19 (quoting Walden, 571 U.S. at 289). But the defendant’s own intentional contacts with users in the forum have nothing to do with the plaintiff. And as I have explained, the facts here show that Wanat “knows—either actually or constructively—about [ePorner.com’s U.S.] user base, and that [he] exploits that base for commercial gain by selling space on [the] website for advertisements.” Mavrix, 674 F.3d at 1230. Taking AMA’s uncontroverted allegations as true and resolving factual disputes in its favor, there is more than enough here to conclude that Wanat, through ePorner, expressly aimed his conduct at the United States. The second prong of the effects test should have been resolved in AMA’s favor. B The third prong of the effects test is also clearly satisfied. Because ePorner allegedly violated the intellectual property rights of AMA, which is headquartered in the United States, and because the harm involves the potential diversion of U.S. users and revenues from AMA’s own platforms, Wanat’s express aiming is “causing harm that [he] knows is likely to be suffered in the forum.” See Brayton Purcell, 606 F.3d at 1131 (it is foreseeable that a plaintiff will be “harmed by infringement of its copyright[s and trademarks], including harm to its business reputation and goodwill, and decreased business and profits”); Mavrix, 647 F.3d at 1231 (“[A] corporation can suffer economic harm both where the bad acts occurred and where the corporation has its principal place of business.” (quoting Dole Food, 303 F.3d at 1113)). All of the requirements of the Calder effects test have been met. AMA MULTIMEDIA V. WANAT 43 C Having established purposeful direction, the next step in the minimum contacts inquiry is to consider whether the claim “arises out of or relates to the defendant’s forum- related activities.” Axiom, 874 F.3d at 1068 (quoting Dole Food, 303 F.3d at 1111)). This step, too, straightforwardly supports jurisdiction. Wanat operates ePorner.com. That website allegedly displayed infringing videos, causing harm to AMA in the United States. But for Wanat’s operation of ePorner.com, AMA would not have been harmed in the forum. The harm to AMA arises out of Wanat’s U.S. contacts. Cf. Mavrix, 647 F.3d at 1228 (“[The plaintiff’s] claim of copyright infringement arises out of [the defendant’s] publication of the photos on a website accessible to users in the forum state.”). 5 D Because all other requirements for specific jurisdiction have been met, the final inquiry is whether it is reasonable to exercise personal jurisdiction over Wanat. Schwarzenegger, 374 F.3d at 802. We balance seven factors in making that determination: 5 Because the majority dismisses the case at the purposeful direction step, it only briefly addresses, in one sentence in a footnote, whether the claim arises out of or relates to the defendant’s forum-related activities and concludes that it does not. See Maj. Op. at 21 n.9. Its only stated reason is that “nothing more than AMA’s contested bare allegations support any personal involvement by Wanat in uploading, encouraging the uploading, or intentionally failing to remove the infringing content.” Id. But it is not contested that Wanat, through his partnership MW Media, assists in operating ePorner.com. The majority’s cursory, non- binding dicta cannot withstand scrutiny. 44 AMA MULTIMEDIA V. WANAT (1) the extent of the defendant’s purposeful interjection into the forum[’s] affairs; (2) the burden on the defendant of defending in the forum; (3) the extent of conflict with the sovereignty of the defendant’s [country]; (4) the forum[’s] interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff’s interest in convenient and effective relief; and (7) the existence of an alternative forum. Freestream Aircraft, 905 F.3d at 607. The burden is on Wanat “to ‘present a compelling case’ that the exercise of jurisdiction would not be reasonable.” Schwarzenegger, 374 F.3d at 802 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985)); accord Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1132 (9th Cir. 2003). Wanat has not done so. On the one hand, forcing Wanat to litigate in the United States would almost certainly impose substantial burdens on him and raise sovereignty and efficiency concerns. ^[6] But on 6 It is notable, however, that Wanat has “not presented evidence that the inconvenience is so great as to constitute deprivation of due process.” Freestream Aircraft, 905 F.3d at 608 (quotations omitted). AMA MULTIMEDIA V. WANAT 45 the other, Wanat has purposefully interjected himself in the forum by operating a website that continuously and deliberately exploited the U.S. market, see CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1080 (9th Cir. 2011), and the United States has a strong interest in enforcing federal intellectual property laws and providing redress for injuries felt within its borders. In light of these competing concerns, like in Harris Rutsky, “[t]he balance is essentially a wash,” and Wanat has not met his burden to present a “compelling case” that the exercise of jurisdiction would be unreasonable. Harris Rutsky, 328 F.3d at 1134; accord Freestream Aircraft, 905 F.3d at 609. I would hold that the United States has personal jurisdiction over Wanat. IV The majority’s holding today conflicts with our precedents and unduly restrains our ability to hold foreign tortfeasors accountable for conduct purposefully directed at the United States and causing harm in the United States. I respectfully dissent.