The opinion of the court was delivered by: Louis L. Stanton, Usdj
In this secondary*fn1 copyright infringement action defendant Gary Fung, a resident of Vancouver, British Columbia, moves for dismissal for lack of personal jurisdiction, or for transfer of the action to the Central District of California. Because a related case is pending in that district and the convenience of parties favors transfer, Fung's motion for transfer is granted.
Plaintiffs are among the world's leading motion picture studios and own copyrights to numerous movies and television programs. Each plaintiff is a Delaware corporation or partnership with a principal place of business in California. (Compl. ¶¶ 12-20.)
Plaintiffs allege that Fung and unknown other defendants "set up, maintain, and operate computer servers and websites that, by design, foster widescale copyright infringement by users of the BitTorrent network." Id. ¶ 5. The BitTorrent network is a "peer-to-peer network optimized for the copying and distribution of large files." Id. ¶ 4.
Fung operates two BitTorrent websites named Isohunt and Torrentbox. Id. ¶ 22. Fung's websites contain "torrent files", which enable users to locate specific computer files, including plaintiffs' copyrighted movies and television programs, stored on other user's computers. Id. ¶¶ 9, 10, 22, 27. Another type of technology operated by Fung "provid[es] the user's computer with access to those other users to facilitate the download process." Id. ¶ 10. The computer file is then digitally copied from one user's computer to the other. Lastly, Fung has operated a service known as "BTHub", which involves the modification of torrent files on his Isohunt website to increase the efficiency and reliability of successfully downloading the desired computer file. Id. ¶ 28.
Fung's primary source of revenue from his BitTorrent websites is the sale of advertising displayed on the sites. Id. ¶ 34; (Fung Decl. ¶ 15.) Plaintiffs allege that Fung appeals to potential advertisers by highlighting the availability of infringing content on his websites. (Compl. ¶ 34.) Fung also solicits donations on his websites through a company named PayPal. Donors are given advertisement-free use of the sites. (Fung Decl. ¶ 16.) T-shirts bearing the mottos "freedom of information" and "Share. Not steal." are also sold on Fung's websites. Id. ¶ 10.
Fung's only physical presence in New York appears to be a visit to New York City in November 2005 to attend an Internet marketing conference and a conference related to his BitTorrent website business. Fung maintains that no transactions directly related to that business occurred in New York. Id. ¶ 12.
II. Standards for Motion to Transfer
"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). The court may transfer an action to another venue even if it lacks personal jurisdiction over the defendants. Fort Knox Music Inc. v. Baptiste, 257 F.3d 108, 112 (2d Cir. 2001).*fn2 Because Fung has consented to personal jurisdiction in the Central District of California, the Court will consider Fung's transfer motion first.
In determining whether a case should be transferred under 1404(a), the relevant factors include: (1) the convenience of the witnesses, (2) the convenience of the parties, (3) the location of relevant documents and the relative ease of access to sources of proof, (4) the locus of operative facts, (5) the availability of process to compel the attendance of unwilling witnesses, (6) the relative means of the parties, (7) the forum's familiarity with governing law, (8) the weight accorded to plaintiff's choice of forum, and (9) trial efficiency and the interests of justice, based on the totality of the circumstances. Fuji Photo Film Co., Ltd. v. Lexar Media, Inc., 415 F. Supp. 2d 370, 373 (S.D.N.Y. 2006).
The court has broad discretion to balance these factors and to consider the evidence of convenience and fairness on a case-by-case basis. In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992), citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S. Ct. 2239, 2243, 101 L. Ed. 2d 22 (1988).
"Absent a clear cut and convincing showing by defendant that the balance of convenience weighs strongly in favor of the transferee court, plaintiff's choice of forum will not be set aside." Gen. State Auth. (of Pa.) for Benefit of Crompton-Richmond Co., Inc. v. Aetna Cas. & Sur. Co., 314 F. Supp. 422, 423 (S.D.N.Y. 1970); see also Ford Motor Co. v. ...