Court Questions Whether Ebook ‘Pirate’ Site Operator Can Be Sued in Texas
Back in March, Travis McCrea, the former leader of the Pirate Party of Canada, faced mounting opposition against his eBook platform, Ebook.bike.
Following in the footsteps of his similar creation TUEBL (The Ultimate eBook Library), Ebook.bike allows users to upload and download eBooks, some of which have turned out to be copyright-infringing.
Author John Van Stry took on the challenge by suing McCrea and alleged business partner Francisco Humberto Dias (doing business as ‘Frantech Solutions’) in a Texas court for direct, contributory, and vicarious copyright infringement.
“Mr. McCrea has a long and proud history of pervasive, blatant, and egregious violations of other persons’ intellectual property rights,” the complaint read.
After the complaint was filed on March 27, 2019, the docket reports that McCrea was served on May 20. Eight days later, Van Stry requested the clerk to file an entry for default, which was actioned a day later. In June, Van Stry’s lawyers filed for a default judgment.
Claiming direct, contributory, and vicarious copyright infringement in respect of 12 books written by Van Stry and allegedly distributed on eBook.bike, the author asked for $15,000 in statutory damages for each of the infringed works. He further demanded that McCrea should pay attorneys’ fees and costs.
On Friday, Judge William C. Bryson handed down an order but it wasn’t a straightforward rubber-stamping of the proposed judgment and doesn’t lay the matter to rest. Since McCrea has chosen not to participate in proceedings thus far, the Judge writes that the Court must consider whether a default judgment can be handed down and if so, what form it would take.
To begin, the Court needed to determine whether McCrea has entered an appearance in the case. That standard was apparently met after McCrea reportedly sent a signed email indicating that he was prepared to accept email service in the case. A later email from McCrea reportedly had him threatening a countersuit for libel and proposing an offer to settle.
The Court also needed to determine whether it has subject matter jurisdiction. While that was quickly established, the question of personal jurisdiction over McCrea appears less straightforward, which is a problem because, without that, any judgment would be void.
In his order, the Judge explains that there are two bases for personal jurisdiction – general and specific.
“General personal jurisdiction is available when the defendant’s contacts with the forum State are ‘continuous and systematic’,” the Judge notes, adding that specific personal jurisdiction “must be based on activities that arise out of or relate to the cause of action, and can exist even if the defendant’s contacts are not continuous and systematic.”
In this case, the Court found that it “plainly” does not have general jurisdiction over McCrea as the complaint offered no evidence of that. “The question, therefore, is whether this Court has specific jurisdiction over Mr. McCrea based on particular acts relating to the cause of action having a sufficient relationship with the forum to support a finding of jurisdiction.”
In summary, based on the claims and allegations in the complaint, Judge Bryson says he doesn’t have enough evidence before him to conclude that the Court has personal jurisdiction over McCrea and as such it will not be handing down a default judgment at this time.
Instead, the parties have been told to file simultaneous briefs within 14 days, each detailing whether the Court has personal jurisdiction over McCrea, considering whether the injury to the copyright holder occurred in Texas, whether that injury is sufficient enough to imply a “substantial connection” with the forum/state, and whether McCrea knew that “his acts would be felt” by Van Stry in Texas. The Judge specifically asks both parties to consider McCrea’s residence outside the United States.
All of that said and taking McCrea’s general non-participation in the process into consideration, the Court says that Van Stry’s factual claims are enough for it to find McCrea liable for copyright infringement in the 12 books. If personal jurisdiction can be established to the Court’s satisfaction, that leaves the matter of damages.
While the excerpt from the proposed judgment above shows that Van Stry is demanding $180,000 in damages, the Judge cites $150,000 in his order. However, he also writes that no documentary evidence has been submitted to the Court which would explain why the amount is appropriate.
Furthermore, Van Stry’s demands for a comprehensive injunction cause an additional complication, the Judge notes, since a copyright injunction cannot be served outside the United States and does not apply directly to conduct occurring outside the United States.
“Such an injunction, if issued, would have to be framed so that it is directed only to conduct occurring within this country, which would be narrower than the full scope of the injunctive relief sought in the complaint,” the Judge writes. And that might be tricky since the relief being sought is extensive.
Van Stry’s motion demands that McCrea should refrain from directly, contributorily or indirectly infringing his rights in the future, not only for the 12 books in the complaint but any others written by him.
On top, there’s a request for caching and proxy services, web hosts, email providers, social media platforms and payment processors currently doing business with McCrea in connection with eBook.bike or similar platforms, to stop doing so, if those sites infringe Van Stry’s rights.
A further request would require search engines to “prevent links to the Defendant’s accounts or websites, which distribute or encourage the copying and distribution of Works or other titles by the same author, from displaying in search results, and removing such links from any search index.”
All that considered and if personal jurisdiction can be established, the Court is prepared to award damages, but not immediately to the level demanded by Van Stry.
“[T]he Court would be prepared to hold that the plaintiff is entitled to a statutory award of $750 for each of the 12 works as to which he has alleged copyright infringement, for a total award of $9000, if the plaintiff were to elect to accept the statutory minimum damages award in lieu of a damages award calculated after a hearing,” the order reads.
In the absence of such an agreement, the Judge says that the Court would not be prepared to go any higher without a further hearing to determine the appropriate amount of damages. In an effort to keep costs down for both sides, the Court is prepared to hold that hearing over the phone.