MATTHEW PAVLOVICH, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; DVD COPY CONTROL ASSOCIATION, INC., Real Party in Interest, 29 Cal. 4th 262

Opinion BROWN, J. “The Internet is an international network of interconnected computers” which “enable [s] tens of millions of people to communicate with one another and to access vast amounts of information from around the world.” (Reno v. American Civil Liberties Union (1997) 521 U.S. 844, 849-850 [117 S.Ct. 2329, 2334, 138 L.Ed.2d 874].) “The best known category of communication over the Internet is the World Wide Web, which allows users to search for and retrieve information stored in remote computers, as well as, in some cases, to communicate back to designated sites.

In concrete terms, the Web consists of a vast number of documents stored in different computers all over the world.” (Id. at p. 852 [117 S.Ct. at p. 2335].) On the Web, “documents, commonly known as Web ‘pages,’ are . . . prevalent.” (Ibid.) These pages are located at Web sites and have addresses marking their location on the Web. (See ibid.) If a Web page is freely accessible, then anyone with access to a computer connected to the Internet may view that page.

With its explosive growth over the past two decades, the Internet has become “ ‘a unique and wholly new medium of worldwide human communication.’ ” (Id. at p. 850 [117 S.Ct. at p. 2334].) Not surprisingly, the so-called Internet revolution has spawned a host of new legal issues as courts have struggled to apply traditional legal frameworks to this new communication medium. Today, we join this struggle and consider the impact of the Internet on the determination of personal jurisdiction. In this case, a California court exercised personal jurisdiction over a defendant based on a posting on an Internet Web site.

Under the particular facts of this case, we conclude the court’s exercise of jurisdiction was improper. I Digital versatile discs (DVD’s) “provide high quality images, such as motion pictures, digitally formatted on a convenient 5-inch disc . . . .” Before the commercial release of DVD’s containing motion pictures, the Content Scrambling System (CSS), a system used to encrypt and protect copyrighted motion pictures on DVD’s, was developed. The CSS technology prevents the playing or copying of copyrighted motion pictures on DVD’s without the algorithms and keys necessary to decrypt the data stored on the disc.

Real party in interest DVD Copy Control Association, Inc. (DVD CCA) is a nonprofit trade association organized under the laws of the State of Delaware with its principal place of business in California. The DVD industry created DVD CCA in December 1998 to control and administer licensing of the CSS technology. In September 1999, DVD CCA hired its staff, and, in December 1999, it began administering the licenses. Soon thereafter, DVD CCA acquired the licensing rights to the CSS technology and became the sole licensing entity for this technology in the DVD video format.

Petitioner Matthew Pavlovich is currently a resident of Texas and the president of Media Driver, LLC, a technology consulting company in Texas. During the four years before he moved to Texas, he studied computer engineering at Purdue University in Indiana, where he worked as a systems and network administrator. Pavlovich does not reside or work in California. He has never had a place of business, telephone listing, or bank account in California and has never owned property in California. Neither Pavlovich nor his company has solicited any business in California or has any business contacts in California.

At Purdue, Pavlovich was the founder and project leader of the LiVid video project (LiVid), which operated a Web site located at “livid.on.open-projects.net.” The site consisted of a single page with text and links to other Web sites. The site only provided information; it did not solicit or transact any business and permitted no interactive exchange of information between its operators and visitors.

According to Pavlovich, the goal of LiVid was “to improve video and DVD support for Linux and to . . . combine the resources and the efforts of the various individuals that were working on related things . . . .’’To reach this goal, the project sought to defeat the CSS technology and enable the decryption and copying of DVD’s containing motion pictures. Consistent with these efforts, LiVid posted the source code of a program named DeCSS on its Web site as early as October 1999.

DeCSS allows users to circumvent the CSS technology by decrypting data contained on DVD’s and enabling the placement of this decrypted data onto computer hard drives or other storage media. At the time LiVid posted DeCSS, Pavlovich knew that DeCSS “was derived from CSS algorithms” and that reverse engineering these algorithms was probably illegal. He had also “heard” that “there was an organization which you had to file for or apply for a license” to the CSS technology.

He did not, however, learn that the organization was DVD CCA or that DVD CCA had its principal place of business in California until after DVD CCA filed this action. In its complaint, DVD CCA alleged that Pavlovich misappropriated its trade secrets by posting the DeCSS program on the LiVid Web site because the “DeCSS program . . . embodies, uses, and/or is a substantial derivation of confidential proprietary information which DVD CCA licenses . . . .” The complaint sought injunctive relief but did not seek monetary damages.

In response, Pavlovich filed a motion to quash service of process, contending that California lacked jurisdiction over his person. DVD CCA opposed, contending that jurisdiction was proper because Pavlovich “misappropriated DVD CCA’s trade secrets knowing that such actions would adversely impact an array of substantial California business enterprises— including the motion picture industry, the consumer electronics industry, and the computer industry.” In a brief order, the trial court denied Pavlovich’s motion, citing Calder v.

Jones (1984) 465 U.S. 783 [104 S.Ct. 1482, 79 L.Ed.2d 804] (Calder), and Panavision Intern., L.P. v. Toeppen (9th Cir. 1998) 141 F.3d 1316 (Panavision). Pavlovich petitioned the Court of Appeal for a writ of mandate. After the Court of Appeal summarily denied the petition, we granted review and transferred the matter back to the Court of Appeal with directions to vacate its denial order and issue an order to show cause. The Court of Appeal then issued a published opinion denying the petition.

Because Pavlovich knew that posting DeCSS on the LiVid Web site would harm the movie and computer industries in California and because “the reach of the Internet is also the reach of the extension of the poster’s presence,” the court found that he purposefully availed himself of forum benefits under the Colder effects test. The court also concluded that the exercise of jurisdiction over Pavlovich was reasonable. We granted review to determine whether the trial court properly exercised jurisdiction over Pavlovich’s person based solely on the posting of the DeCSS source code on the LiVid Web site.

We conclude it did not. II California courts may exercise personal jurisdiction on any basis consistent with the Constitutions of California and the United States. (Code Civ. Proc., § 410.10.) The exercise of jurisdiction over a nonresident defendant comports with these Constitutions “if the defendant has such minimum contacts with the state that the assertion of jurisdiction does not violate ‘ “traditional notions of fair play and substantial justice.” ’ ” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444 [58 Cal.Rptr.2d 899, 926 P.2d 1085] (Vons), quoting Internat. Shoe Co. v.

Washington (1945) 326 U.S. 310, 316 [66 S.Ct. 154, 158, 90 L.Ed. 95, 161 A.L.R. 1057] (Internat. Shoe) .) Under the minimum contacts test, “an essential criterion in all cases is whether the ‘quality and nature’ of the defendant’s activity is such that it is ‘reasonable’ and ‘fair’ to require him to conduct his defense in that State.” (Kulko v. California Superior Court (1978) 436 U.S. 84, 92 [98 S.Ct. 1690, 1697, 56 L.Ed.2d 132], quoting Internat.

Shoe, supra, 326 U.S. at pp. 316-317, 319 [66 S.Ct. at pp. 158, 159-160].) “[T]he ‘minimum contacts’ test ... is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite ‘affiliating circumstances’ are present.” (Kulko, at p. 92 [98 S.Ct. at p. 1697], quoting Hanson v. Denckla (1958) 357 U.S. 235, 246 [78 S.Ct. 1228, 1235, 2 L.Ed.2d 1283] (Hanson).) “[T]his determination is one in which few answers will be written ‘in black and white.

The greys are dominant and even among them the shades are innumerable.’” (Kulko, at p. 92 [98 S.Ct. at p. 1697], quoting Estin v. Estin (1948) 334 U.S. 541, 545 [68 S.Ct. 1213, 1216, 92 L.Ed. 1561, 1 A.L.R.2d 1412].) In making this determination, courts have identified two ways to establish personal jurisdiction. “Personal jurisdiction may be either general or specific.” (Vons, supra, 14 Cal.4th at p. 445.) In this case, DVD CCA does not contend that general jurisdiction exists. We therefore need only consider whether specific jurisdiction exists.

When determining whether specific jurisdiction exists, courts consider the “ ‘relationship among the defendant, the forum, and the litigation.’ ” (Helicopteros Nacionales de Colombia v. Hall (1984) 466 U.S. 408, 414 [104 S.Ct. 1868, 1872, 80 L.Ed.2d 404], quoting Shaffer v.

Heitner (1977) 433 U.S. 186, 204 [97 S.Ct. 2569, 2579, 53 L.Ed.2d 683].) A court may exercise specific jurisdiction over a nonresident defendant only if: (1) “the defendant has purposefully availed himself or herself of forum benefits” (Vons, supra, 14 Cal.4th at p. 446); (2) “the ‘controversy is related to or “arises out of’ [the] defendant’s contacts with the forum’ ” (ibid., quoting Helicopteros, supra, 466 U.S. at p. 414 [104 S.Ct. at p. 1872]); and (3) “ ‘the assertion of personal jurisdiction would comport with “fair play and substantial justice” ’ ” (Vons, supra, 14 Cal.4th at p. 447, quoting Burger King Corp. v.

Rudzewicz (1985) 471 U.S. 462, 472-473 [105 S.Ct. 2174, 2182, 85 L.Ed.2d 528] (Burger King)). “The purposeful availment inquiry . . . focuses on the defendant’s intentionality. [Citation.] This prong is only satisfied when the defendant purposefully and voluntarily directs his activities toward the forum so that he should expect, by virtue of the benefit he receives, to be subject to the court’s jurisdiction based on” his contacts with the forum. (U.S. v.

Swiss American Bank, Ltd. (1st Cir. 2001) 274 F.3d 610, 623-624 (Swiss American Bank).) Thus, the “ ‘purposeful availment’ requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts [citations], or of the ‘unilateral activity of another party or a third person.’ [Citations.]” (Burger King, supra, 471 U.S. at p. 475 [105 S.Ct. at p. 2183].) “When a [defendant] ‘purposefully avails itself of the privilege of conducting activities within the forum State,’ [citation], it has clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the State.” (World-Wide Volkswagen Corp. v.

Woodson (1980) 444 U.S. 286, 297 [100 S.Ct. 559, 567, 62 L.Ed.2d 490] (World-Wide Volkswagen).) In the defamation context, the United States Supreme Court has described an “effects test” for determining purposeful availment. (Noonan v. Winston Co. (1st Cir. 1998) 135 F.3d 85, 90 (Noonan).) In Colder, a reporter in Florida wrote an

article for the National Enquirer about Shirley Jones, a well-known actress who lived and worked in California. The president and editor of the National Enquirer reviewed and approved the article, and the National Enquirer published the article. Jones sued, among others, the reporter and editor (individual defendants) for libel in California.

The individual defendants moved to quash service of process, contending they lacked minimum contacts with California. (Calder, supra, 465 U.S. at pp. 785-786 [104 S.Ct. at pp. 1484-1485].) The United States Supreme Court disagreed and held that California could exercise jurisdiction over the individual defendants “based on the ‘effects’ of their Florida conduct in California.” (Calder, supra, 465 U.S. at p. 789 [104 S.Ct. at p. 1487].) The court found jurisdiction proper because “California [was] the focal point both of the story and of the harm suffered.” (Ibid. ) “The allegedly libelous story concerned the California activities of a California resident.

It impugned the professionalism of an entertainer whose television career was centered in California . . . and the brunt of the harm, in terms both of [Jones’s] emotional distress and the injury to her professional reputation, was suffered in California.” (Id. at pp. 788-789 [104 S.Ct. at p. 1486], fn. omitted.) The court also noted that the individual defendants wrote or edited “an

article that they knew would have a potentially devastating impact upon [Jones], And they knew that the brunt of that injury would be felt by [Jones] in the State in which she lives and works and in which the National Enquirer has its largest circulation.” (Id. at pp. 789-790 [104 S.Ct. at p. 1487].) Although Calder involved a libel claim, courts have applied the effects test to other intentional torts, including business torts. (See IMO Industries, Inc. v. Kiekert AG (3d Cir. 1998) 155 F.3d 254, 259-260, 261 (IMO) [courts must consider Calder in intentional tort cases]; Far West Capital, Inc. v.

Towne (10th Cir. 1995) 46 F.3d 1071, 1077 (Far West) [“Courts have also applied Calder to business torts”].) Application of the test has, however, been less than uniform. (See Swiss American Bank, supra, 274 F.3d at p. 624, fn. 7 [“we note that several circuits do not appear to agree as to how to read Calder”); IMO, supra, 155 F.3d at p. 261 [courts applying Calder to non-defamation cases have adopted “a mixture of broad and narrow

interpretations”].) Indeed, courts have “struggled somewhat with Calder’s import, recognizing that the case cannot stand for the broad proposition that a foreign act with foreseeable effects in the forum state always gives rise to specific jurisdiction.” (Bancroft & Masters, Inc. v. Augusta Nat.

Inc. (9th Cir. 2000) 223 F.3d 1082, 1087 (Bancroft).) Despite this struggle, most courts agree that merely asserting that a defendant knew or should have known that his intentional acts would cause harm in the forum state is not enough to establish jurisdiction under the effects test. (See IMO, supra, 155 F.3d at p. 265 [“we . . . agree with the conclusion reached by the First, Fourth, Fifth, Eighth, Ninth and Tenth Circuits that jurisdiction under Calder requires more than a finding that the harm caused by the defendant’s intentional tort is primarily felt within the forum”]; Griffis v.

Luban (Minn. 2002) 646 N.W.2d 527, 534 [the United States Supreme Court “did make it clear that foreseeability of effects in the forum is not itself enough to justify long-arm jurisdiction”].) Instead, the plaintiff must also “point to contacts which demonstrate that the defendant expressly aimed its tortious conduct at the forum . . . .” (IMO, supra, 155 F.3d at p. 265.) For example, the Third Circuit Court of Appeals has held that, to meet the effects test, “the plaintiff must show that the defendant knew that the plaintiff would suffer the brunt of the harm caused by the tortious conduct in the forum, and point to specific activity indicating that the defendant expressly aimed its tortious conduct at the forum.” (IMO, supra, 155 F.3d at p. 266.) Similarly, in the Ninth Circuit Court of Appeals, the plaintiff must show not only that the defendant “caused harm, the brunt of which is suffered and which the defendant knows is likely to be suffered in the forum state,” but also that the defendant “committed an intentional act . . . expressly aimed at the forum state.” (Bancroft, supra, 223 F.3d at p. 1087.) Indeed, virtually every jurisdiction has held that the Calder effects test requires intentional conduct expressly aimed at or targeting the forum state in addition to the defendant’s knowledge that his intentional conduct would cause harm in the forum.

At least one exception does, however, exist. In Janmark, Inc. v. Reidy (7th Cir. 1997) 132 F.3d 1200, the plaintiff, an Illinois corporation, and the defendants, California residents, were competitors who sold minishopping carts worldwide. The defendants claimed that they owned a copyright in their cart design and threatened the plaintiff’s New Jersey customer with contributory copyright infringement. Because of the threat, the customer stopped buying shopping carts from the plaintiff.

Based on this incident, the plaintiff sued the defendants for tortious interference with prospective economic advantage. (Id. at p. 1201.) Although the defendants had no other contacts with Illinois, the Seventh Circuit Court of Appeals found that Illinois could exercise jurisdiction over the defendants solely because “the injury and thus the tort occurred in Illinois.” (Id. at p. 1202.) In doing so, the Seventh Circuit apparently concluded that the state where the injury occurred—in this case, the plaintiff’s residence—could always exercise jurisdiction over a nonresident defendant in the intentional tort context.

Like most of our sister courts, we do not find Janmark persuasive.

By making the location of the harm dispositive, Janmark ignores “the defendant’s knowledge and intent in committing the tortious activity”—the very focus of the purposeful availment requirement. (IMO, supra, 155 F.3d at p. 264.) Even if Janmark merely stands for the proposition that a defendant’s knowledge that its tortious acts would cause the plaintiff injury in the forum state satisfies the effects test (see IMO, supra, 155 F.3d at p. 264, fn. 6), it is still problematic. “[F]oreseeability of causing injury in another State ... is not a ‘sufficient benchmark’ for exercising personal jurisdiction.” (Burger King, supra, 471 U.S. at p. 474 [105 S.Ct. at p. 2183].) Rather, “the foreseeability that is critical to due process analysis ... is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” (World-Wide Volkswagen, supra, 444 U.S. at p. 297 [100 S.Ct. at p. 567].) The knowledge that harm will likely be suffered in the forum state, “when unaccompanied by other contacts,” is therefore “too unfocused to justify personal jurisdiction.” (ESAB, supra, 126 F.3d at p. 625.) Thus, we decline to follow Janmark and its progeny and join with those jurisdictions that require additional evidence of express aiming or intentional targeting.

In doing so, we are in accord with those California decisions applying the effects test.

We now consider whether Pavlovich’s contacts with California meet the effects test. “[T]he plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction.” (Vons, supra, 14 Cal.4th at p. 449.) If the plaintiff meets this initial burden, then the defendant has the burden of demonstrating “that the exercise of jurisdiction would be unreasonable.” (Ibid) In reviewing a trial court’s determination of jurisdiction, we will not disturb the court’s factual determinations “if supported by substantial evidence.” (Ibid) “When no conflict in the evidence exists, however, the question of jurisdiction is purely one of law and the reviewing court engages in an independent review of the record.” (Ibid.) Applying these standards, we conclude that the evidence in the record fails to show that Pavlovich expressly aimed his tortious conduct at or intentionally targeted California.

In this case, Pavlovich’s sole contact with California is LiVid’s posting of the DeCSS source code containing DVD CCA’s proprietary information on an Internet Web site accessible to any person with Internet access. Pavlovich never worked in California. He owned no property in California, maintained no bank accounts in California, and had no telephone listings in California. Neither Pavlovich nor his company solicited or transacted any business in California. The record also contains no evidence of any LiVid contacts with California.

Although we have never considered the scope of personal jurisdiction based solely on Internet use, other courts have considered this issue, and most have adopted a sliding scale analysis. “At one end of the spectrum are situations where a defendant clearly does business over the Internet.

If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. [Citation.] At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions.

A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction. [Citation.] The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.” (Zippo Mfg. Co. v.

Zippo Dot Com, Inc. (W.D.Pa. 1997) 952 F.Supp. 1119, 1124.) Here, LiVid’s Web site merely posts information and has no interactive features. There is no evidence in the record suggesting that the site targeted California. Indeed, there is no evidence that any California resident ever visited, much less downloaded the DeCSS source code from, the LiVid Web site. Thus, Pavlovich’s alleged “conduct in . . . posting [a] passive Web site[] on the Internet is not,” by itself, “sufficient to subject” him “to jurisdiction in California.” (Jewish Defense Organization, Inc. v.

Superior Court (1999) 72 Cal.App.4th 1045, 1060 [85 Cal.Rptr.2d 611] (JDO), fn. omitted [refusing to exercise jurisdiction under the effects test even though the defendant had “passive Web sites on the Internet”]; Cybersell, Inc. v.

Cybersell, Inc. (9th Cir. 1997) 130 F.3d 414, 419-420 [refusing to exercise jurisdiction under the effects test even though the defendant posted infringing material on its Web site]; but see Bunn-O-Matic I, supra, 46 U.S.P.Q.2d at p. 1377 [suggesting that the operation of a Web site, by itself, is sufficient to establish express aiming at the forum state].) “ ‘Creating a site, like placing a product into the stream of commerce, may be felt nationwide—or even worldwide—but, without more, it is not

an act purposefully directed toward the forum state.’ ” (Cybersell, at p. 418, quoting Bensusan Restaurant Corp. v. King (S.D.N.Y. 1996) 937 F.Supp. 295, 301, affd. (2d Cir. 1997) 126 F.3d 25.) Otherwise, “personal jurisdiction in Internet-related cases would almost always be found in any forum in the country.” (GTE New Media Services Inc. v. BellSouth Corp. (D.C.

Cir. 2000) 199 F.3d 1343, 1350.) Such a result would “vitiate long-held and inviolate principles of’ personal jurisdiction. (Ibid.) Nonetheless, DVD CCA contends posting the misappropriated source code on an Internet Web site is sufficient to establish purposeful availment in this case because Pavlovich knew the posting would harm not only a licensing entity but also the motion picture, computer and consumer electronics industries centered in California.

According to DVD CCA, this knowledge establishes that Pavlovich intentionally targeted California and is sufficient to confer jurisdiction under the Calder effects test. Although the question is close, we disagree. As an initial matter, DVD CCA’s reliance on Pavlovich’s awareness that an entity owned the licensing rights to the CSS technology is misplaced. Although Pavlovich knew about this entity, he did not know that DVD CCA was that entity or that DVD CCA’s primary place of business was California until after the filing of this lawsuit.

More importantly, Pavlovich could not have known this information when he allegedly posted the misappropriated code in October 1999, because DVD CCA only began administering licenses to the CSS technology in December 1999—approximately two months later. Thus, even assuming Pavlovich should have determined who the licensor was and where that licensor resided before he posted the misappropriated code, he would not have discovered that DVD CCA was that licensor.

Because Pavlovich could not have known that his tortious conduct would harm DVD CCA in California when the misappropriated code was first posted, his knowledge of the existence of a licensing entity cannot establish express aiming at California. Thus, the only question in this case is whether Pavlovich’s knowledge that his tortious conduct may harm certain industries centered in California—i.e., the motion picture, computer, and consumer electronics industries—is sufficient to establish express aiming at California.

As explained below, we conclude that this knowledge, by itself, cannot establish purposeful availment under the effects test. First, Pavlovich’s knowledge that DeCSS could be used to illegally pirate copyrighted motion pictures on DVD’s and that such pirating would harm the motion picture industry in California does not satisfy the express aiming requirement. As an initial matter, we question whether these effects are even relevant to our analysis, because DVD CCA does not assert a cause of action premised on the illegal pirating of copyrighted motion pictures. (See Cornelison v.

Chaney (1976) 16 Cal.3d 143, 148 [127 Cal.Rptr. 352, 545 P.2d 264] [specific jurisdiction “depends upon the quality and nature of [the defendant’s] activity in the forum in relation to the particular cause of action” (italics added)].) In any event, “the mere ‘unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State.’” (World-Wide Volkswagen, supra, 444 U.S. at p. 298 [100 S.Ct. at p. 567], quoting Hanson, supra, 357 U.S. at p. 253 [78 S.Ct. at pp. 1239-1240].) “[T]he fact that a defendant’s actions in some way set into motion events which ultimately injured a California resident” cannot, by itself, confer jurisdiction over that defendant. (Wolfe, supra, 217 Cal.App.3d at p. 547.) Thus, the foreseeability that third parties may use DeCSS to harm the motion picture industry cannot, by itself, satisfy the express aiming requirement.

Because nothing in the record suggests that Pavlovich encouraged Web site visitors to use DeCSS to illegally pirate copyrighted motion pictures, his mere “awareness” they might do so does not show purposeful availment. (See Asahi Metal Industry Co. v. Superior Court (1987) 480 U.S. 102, 112 [107 S.Ct. 1026, 1032, 94 L.Ed.2d 92] (plur. opn. of O’Connor, J.) [the mere awareness that third parties will sweep the defendant’s product into the forum state does not convert its act of selling the product to third parties “into

an act purposefully directed toward the forum State”].) Second, Pavlovich’s knowledge of the effects of his tortious conduct on the consumer electronics and computer industries centered in California is an even more attenuated basis for jurisdiction. According to DVD CCA, Pavlovich knew that posting DeCSS would harm the consumer electronics and computer industries in California, because many licensees of the CSS technology resided in California. The record, however, indicates that Pavlovich did not know that any of DVD CCA’s licensees resided in California.

At most, the record establishes that Pavlovich should have guessed that these licensees resided in California because there are many consumer electronic and computer companies in California. DVD CCA’s argument therefore boils down to the following syllogism: jurisdiction exists solely because Pavlovich’s tortious conduct had a foreseeable effect in California. But mere foreseeability is not enough for jurisdiction. (See Bancroft, supra, 223 F.3d at p. 1087.) Otherwise, the commission of any intentional tort affecting industries in California would subject a defendant to jurisdiction in California.

We decline to adopt such an expansive

interpretation of the effects test. (See Callaway Golf Corp. v. Royal Canadian Golf Ass’n (C.D.Cal. 2000) 125 F.Supp.2d 1194, 1200 [“Merely knowing a corporate [plaintiff] might be located in California does not fulfill the effects test” (italics added)].) Cases citing a defendant’s knowledge of the effects of its tortious conduct on an industry centered in the forum state to support a finding of jurisdiction under the effects test are inapposite.

In exercising jurisdiction, those courts concluded that the defendant’s knowledge of industry-wide effects in the forum state in conjunction with other evidence of express aiming at the forum state established purposeful availment under the effects test. Thus, those cases merely hold that such knowledge is relevant to any determination of personal jurisdiction. They do not establish that such knowledge, by itself, establishes express aiming.

Indeed, DVD CCA does not cite, and we have not found, any case where a court exercised jurisdiction under the effects test based solely on the defendant’s knowledge of industry-wide effects in the forum state. This dearth of supporting case law is understandable when we consider the ramifications of a contrary holding. According to DVD CCA, California should exercise jurisdiction over Pavlovich because he should have known that third parties may use the misappropriated code to illegally copy movies on DVD’s and that licensees of the misappropriated technology resided in California.

In other words, DVD CCA is asking this court to exercise jurisdiction over a defendant because he should have known that his conduct may harm—not a California plaintiff—but industries associated with that plaintiff. As a practical matter, such a ruling makes foreseeability of harm the sole basis for jurisdiction in contravention of controlling United States Supreme Court precedent. (See Burger King, supra, 471 U.S. at p. 474 [105 S.Ct. at p. 2183].) Indeed, such a broad

interpretation of the effects test would effectively eliminate the purposeful availment requirement in the intentional tort context for select plaintiffs. In most, if not all, intentional tort cases, the defendant is or should be aware of the industries that may be affected by his tortious conduct. Consequently, any plaintiff connected to industries centered in California—i.e., the motion picture, computer, and consumer electronics industries—could sue an out-of-state defendant in California for intentional torts that may harm those industries.

For example, any creator or purveyor of technology that enables copying of movies or computer software—including a student in Australia who develops a program for creating backup copies of software and distributes it to some of his classmates or a store owner in Africa who sells a device that makes digital copies of movies on videotape— would be subject to suit in California because they should have known their conduct may harm the motion picture or computer industries in California. Indeed, DVD CCA’s

interpretation would subject any defendant who commits an intentional tort affecting the motion picture, computer, or consumer electronics industries to jurisdiction in California even if the plaintiff was not a California resident. Under this logic, plaintiffs connected to the auto industry could sue any defendant in Michigan, plaintiffs connected to the financial industry could sue any defendant in New York, and plaintiffs connected to the potato industry could sue any defendant in Idaho.

Because finding jurisdiction under the facts in this case would effectively subject all intentional tortfeasors whose conduct may harm industries in California to jurisdiction in California, we decline to do so. We, however, emphasize the narrowness of our decision. A defendant’s knowledge that his tortious conduct may harm industries centered in California is undoubtedly relevant to any determination of personal jurisdiction and may support a finding of jurisdiction. We merely hold that this knowledge alone is insufficient to establish express aiming at the forum state as required by the effects test.

Because the only evidence in the record even suggesting express aiming is Pavlovich’s knowledge that his conduct may harm industries centered in California, due process requires us to decline jurisdiction over his person. In addition, we are not confronted with a situation where the plaintiff has no other forum to pursue its claims and therefore do not address that situation. DVD CCA has the ability and resources to pursue Pavlovich in another forum such as Indiana or Texas. Our decision today does not foreclose it from doing so. Pavlovich may still face the music—just not in California.

Ill Accordingly, we reverse the judgment of the Court of Appeal and remand for further proceedings consistent with this opinion. Kennard, J., Werdegar, J., and Moreno, J., concurred. (See, e.g., Wien Air Alaska, Inc. v.

Brandt (5th Cir. 1999) 195 F.3d 208, 212 [“Foreseeable injury alone is not sufficient to confer specific jurisdiction, absent the direction of specific acts toward the forum”]; Noonan, supra, 135 F.3d at p. 91 [holding that the defendants’ knowledge that the plaintiff would suffer injury in the forum was insufficient to establish jurisdiction under the effects test because the defendants “did not direct their actions toward” the forum state]; id. at pp. 90-91; ESAB Group, Inc. v.

Centricut, Inc. (4th Cir. 1997) 126 F.3d 617, 625 (ESAB) [holding that the defendants’ knowledge that their actions would, if successful, “result in less sales” for the plaintiff, “which was headquartered in” the forum state, was insufficient to establish jurisdiction under the effects test, because the defendants did not “manifest behavior intentionally targeted at and focused on” the forum]; Far West, supra, 46 F.3d at p. 1080 [holding that the defendants’ knowledge that their acts would interfere with the contractual rights of a forum resident is not enough to establish jurisdiction under the effects test because their acts had no “connection” to the forum state “beyond [the] plaintiff’s corporate domicile”]; id. at pp. 1079-1080; Hicklin Engineering, Inc. v.

Aidco, Inc. (8th Cir. 1992) 959 F.2d 738, 739 [holding that the defendant’s knowledge that its tortious acts “may have an effect on a competitor, absent additional contacts,” is insufficient to establish jurisdiction]; Drayton Enterprises, L.L.C. v. Dunker (D.N.D. 2001) 142 F.Supp.2d 1177, 1184 [holding that the defendants’ “revealing and procuring [of] a trade secret” “while knowing that the primary consequence would be felt in” the forum state was not enough to establish jurisdiction]; id. at pp. 1184-1185; Cognigen Networks, Inc. v.

Cognigen Corp. (W.D.Wash. 2001) 174 F.Supp.2d 1134, 1141 [“A defendant’s knowledge of a resident plaintiffs use of a mark in an intellectual property tort claim is not enough to satisfy the effects test for personal jurisdiction”]; Barrett v. Catacombs Press (E.D.Pa. 1999) 44 F.Supp.2d 717, 731 [“Unless [the forum state] is deliberately or knowingly targeted by the tortfeasor, the fact that harm is felt in [the forum state] from conduct occurring outside [that state] is never sufficient to satisfy due process”]; Conseco, Inc. v.

Hickerson (Ind.Ct.App. 1998) 698 N.E.2d 816, 819 [holding that the defendant’s knowing posting of a forum resident’s trademark on a Web site was insufficient to confer jurisdiction because there was no “purposefully directed activity”]; Griffis v. Luban, supra, 646 N.W.2d at pp. 535-537 [holding that the knowing posting of defamatory material about a forum resident on the Internet is insufficient to establish express aiming]; Laykin v.

McFall (Tex.App. 1992) 830 S.W.2d 266, 271 [holding that a court may not exercise jurisdiction even though the “intentional tortfeasor knowingly cause[d] injury” in the forum state because “he did not purposefully direct his activities into” the forum].) (See, e.g., Bunn-O-Matic Corp. v. Bunn Coffee Service Inc. (C.D.Ill. 2000) 88 F.Supp.2d 914; Clearclad Coatings, Inc. v. Xontal Ltd. (N.D.Ill. Aug. 20, 1999, No. 98 C 7199) 1999 WL 652030; McMaster-Carr Supply Co. v. Supply Depot, Inc. (N.D.Ill. June 16, 1999, No. 98 C 1903) 1999 WL 417352; Bunn-O-Matic Corp. v.

Bunn Coffee Service Inc. (C.D.Ill. 1998) 46 U.S.P.Q.2d 1375 (Bunn-O-Matic I).) (See, e.g., Sibley v. Superior Court (1976) 16 Cal.3d 442, 446 [128 Cal.Rptr. 34, 546 P.2d 322] [“The mere causing of an ‘effect’ in California... is not necessarily sufficient to afford a constitutional basis for jurisdiction”]; Mansour v. Superior Court (1995) 38 Cal.App.4th 1750, 1762 [46 Cal.Rptr.2d 191] [refusing to exercise jurisdiction under the effects test because there was “no evidence [the defendants] purposefully directed their activities toward[] California”]; Edmunds v.

Superior Court (1994) 24 Cal.App.4th 221, 236 [29 Cal.Rptr.2d 281] [refusing to exercise jurisdiction under the effects test because the defendant’s acts were directed at Hawaii and not California]; Wolfe v. City of Alexandria (1990) 217 Cal.App.3d 541, 548-549 [265 Cal.Rptr. 881] (Wolfe) [refusing to exercise jurisdiction under the effects test because the defendant’s acts, even if wrongful and fraudulent, were not expressly aimed at California]; Taylor-Rush v.

Multitech Corp. (1990) 217 Cal.App.3d 103, 114 [265 Cal.Rptr. 672] [exercising jurisdiction under the effects test because the defendant’s contacts with California showed intentional targeting]; Farris v. Capt. J. B. Fronapfel Co. (1986) 182 Cal.App.3d 982, 990 [227 Cal.Rptr. 619] [finding that the “effects in California” of the defendant’s tortious acts were “too remote in time and causal connection to fairly and justly require” the defendant “to come to California to defend himself’]; Quattrone v.

Superior Court (1975) 44 Cal.App.3d 296, 304 [118 Cal.Rptr. 548] [exercising jurisdiction based on the effects of the defendant’s tortious acts plus his other contacts with California].) At oral argument, DVD CCA claimed that Pavlovich had received a cease-and-desist letter from the Motion Picture Association (MPA), and contended his receipt of this letter established purposeful availment. Although the complaint alleged that MPA sent such a letter to various Web sites and Internet service providers, the record contains no copy of this letter.

Moreover, nothing in the record indicates that such a letter was sent to Pavlovich or that he received or even knew about the letter. Accordingly, DVD CCA’s unsubstantiated allusion to a cease-and-desist letter cannot support a finding of jurisdiction. In any event, DVD CCA made no mention of this letter to the trial court and Court of Appeal or in its briefs to this court. Thus, it has waived the issue. (See, e.g., JDO, supra, 72 Cal.App.4th at p. 1059 [refusing to exercise jurisdiction under the effects test because the defendant did not know that the plaintiff would suffer harm in the forum state]; Chaiken v.

W Pub. Corp. (2d Cir. 1997) 119 F.3d 1018, 1029 [refusing to exercise jurisdiction under the effects test because the defendant had no reason to believe that the plaintiffs would suffer harm in the forum state]; Search Force, Inc. v. Dataforce Intern., Inc. (S.D.Ind. 2000) 112 F.Supp.2d 771, 780 [refusing to exercise jurisdiction under the effects test because the defendant was not aware of the plaintiff’s use of the trademark before the defendant created its infringing Web site]; Tech Heads, Inc. v.

Desktop Service Center, Inc. (D.Or. 2000) 105 F.Supp.2d 1142, 1148 [refusing to exercise jurisdiction under the effects test because the defendant did not know about the plaintiff or its presence in the forum state]; Perry v. RightOn.com (D.Or. 2000) 90 F.Supp.2d 1138, 1141 [refusing to exercise jurisdiction under the effects test because the defendant did not know about the plaintiff or his residence when the defendant acquired the infringing domain name]; Rannoch, Inc. v.

Rannoch Corp. (E.D.Va. 1999) 52 F.Supp.2d 681, 685 [refusing to exercise jurisdiction under the effects test because the defendant did not know about the plaintiff or its trademarks].) (See Panavision, supra, 141 F.3d at p. 1322 [the defendant “engaged in a scheme to register [a forum resident’s] trademarks as his domain names for the purpose of extorting money from” that resident]; Cable News Network v. GoSMS.com, Inc. (S.D.N.Y. 2000) 56 U.S.P.Q.2d 1959, 1963 [2000 WL 1678039, *4] [the defendant “transmitted infringing content to” fomm residents]; 3DO Co. v.

Poptop Software Inc. (N.D.Cal. 1998) 49 U.S.P.Q.2d 1469, 1472 [1998 U.S. Dist. Lexis 21281] [the defendants “encourage[d] and facilitate^] users” in the forum state “to download allegedly infringing copies” from its Web site and used a server in the forum state to operate the site].) Pavlovich claims—and DVD CCA does not dispute—that DeCSS may be used for legitimate, and not just illegal, purposes. Thus, Pavlovich is no different from the student or store owner in the hypothetical. We disapprove of Nam Tai Electronics, Inc. v.

Titzer (2001) 93 Cal.App.4th 1301 [113 Cal.Rptr.2d 769], to the extent it is contrary to our decision today.