Flipboard, Inc. v. Amorphous

2015 WL 8482258 (2015)

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Flipboard, Inc. v. Amorphous

United States District Court for the Northern District of California
2015 WL 8482258 (2015)

Facts

Kalliope Amorphous (defendant) was a visual artist and a resident of Rhode Island. Amorphous posted some of her photographs on Bored Panda, Flickr, and Tumblr because, based on these sites’ terms of use, she believed that they strictly enforced copyrights. Flipboard, Inc. (plaintiff), a California company, was an online service that allowed users to create online content with images, some of which were provided by Flipboard. Amorphous discovered that some of her work was available on Flipboard by accessing Flipboard’s website. Flipboard’s terms of use (TOU), which Amorphous accepted and with which she was very familiar, contained a forum-selection clause selecting a California state court in Santa Clara County, California. After Amorphous discovered her images on Flipboard, Amorphous’s attorney in New York contacted Flipboard, demanding $3 million in damages. During negotiations, Amorphous’s attorney sent screenshots of how Amorphous had used her images on Flipboard, but provided no evidence that any third parties had used Amorphous’s images on Flipboard. After Amorphous’s attorney and Flipboard could not reach an agreement, Flipboard filed suit against Amorphous in federal court in California, seeking a declaratory judgment of noninfringement under federal copyright law. Amorphous, acting pro se, filed a motion to dismiss for lack of personal jurisdiction. Flipboard argued that by accepting the TOU, Amorphous consented to personal jurisdiction. Amorphous responded that she had to accept the TOU so she could collect evidence of infringement, leaving her with the impossible choice between consenting to personal jurisdiction or not having any evidence to support her claim. Flipboard argued that Amorphous accepted the TOU to manufacture evidence of infringement because she could not prove that any third party had used her images.

Rule of Law

Issue

Holding and Reasoning (Freeman, J.)

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