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Private Media Group to Appeal xHamster Suit's Dismissal

Private Media Group to Appeal xHamster Suit's Dismissal
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Jan 17, 2012 9:30 AM PST    Text size: 

CEDAR RAPIDS, Iowa — A federal judge today dismissed Private Media Group's infringement suit against the operators of xHamster.com, ruling the adult entertainment company doesn't have personal jurisdiction to sue the tube site in Iowa.

Private immediately responded to the ruling, saying the company would appeal the judge's decision.to the 8th U.S. Circuit Court of Appeals.

Private, through its Fraserside IP division, sued the operators of xHamster in Cedar Rapids for at least $10.8 million in damages for the alleged illegal streaming of 73 videos on the site that is said to have nearly 65 million page views a day.

Fraserside IP is based in Cedar Rapids, while its parent company's U.S. corporate headquarters are in Nevada. xHamster, meanwhile, is based in Cyprus.

"[R]esolution of the issue of personal jurisdiction over xHamster is not written in gray but solid black," U.S. District Judge Mark Bennett ruled today. "Because xHamster does not have sufficient 'minimum contacts' with Iowa, the maintenance of this lawsuit would offend 'traditional notions of fair play and substantial justice.'" 

Bennett said he considered five factors developed by the 8th Circuit, which presides over federal cases in Iowa, determining whether a nonresident defendant has sufficient minimum contacts with the forum state to exercise personal jurisdiction over it. 

Those factors include, Bennett said, the nature and quality of the contacts with the forum state; the quantity of the contacts with the forum state; the relation of the cause of action to the contacts; the interest of the forum state in providing its residents a forum; and the convenience of the parties.

Bennett, in his ruling today, said that "xHamster has no offices in Iowa, no employees in Iowa, no telephone number in Iowa, and no agent for service of process in Iowa. xHamster does not advertise in Iowa."

The judge went on to say that "no xHamster officer or director has ever visited Iowa. xHamster does not maintain any of its servers within Iowa. All of xHamster’s servers are located outside of the U.S."

"xHamster’s total absence of contacts with the state of Iowa is the antithesis of the type of continuous and systematic contacts necessary for exercising general personal jurisdiction over xHamster," ruled Bennett, who also declined Private's request for limited jurisdictional discovery in the case.

 "[A]fter considering all five relevant factors, I conclude that the exercise of general or specific personal jurisdiction over xHamster is inappropriate under the Iowa long-arm statute and fails to comport with due  process," Bennett ruled. "Thus, viewing the circumstances of this case as a whole, Fraserside has failed to make a prima facie case of personal jurisdiction over xHamster."

Tuesday's decision is a setback for Private, which through its Fraserside IP division has filed numerous cases against adult tube site companies at federal court in Iowa.

Those pending suits include claims against HardSexTube.com, EmpFlix.com, TnAFlix.com, PornVisit.com, JizzBo.com, JizzOnline.com, YouJizz.com, JizzHut.com, PornXO.com, ePorner.com, Vid2C.com, EskimoToob.com, Tjoob.com, TubeRip.com, SunPorno.com, HardXXXTube.com and DrTuber.com.

Attorney Chad Belville, who represents Private, said that Bennett's decision "is not a ruling on the substance or merit of the case, just the jurisdiction."

"We will appeal the ruling to the 8th Circuit and the fight between the two companies will continue," Belville told XBIZ. "Additionally this will not stop or hold back any of our efforts and you can expect to see new filings over the next few weeks." 

xHamster attorney Val Gurvits, meanwhile, told XBIZ that he was pleased with today's ruling, adding "the court really did an excellent job of applying the law to the facts of this case. "

"We have always said that Fraserside IP was set up in Iowa as something of a copyright troll for Private Media Group," he said. "There was never any real connection to Iowa for any of the parties, other than a lawyer who apparently thought it was a good jurisdiction for him to extort settlements from defendants who had no connection to the state on behalf of a plaintiff that had no real standing to sue. 

"Unfortunately for him and for Private Media, the other thing Iowa has is thoughtful judges."

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