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Intellitech Corp. v. The Institute of Electrical and Electronics Engineers

United States District Court, D. New Hampshire

February 27, 2017

Intellitech Corporation, Plaintiffs
The Institute of Electrical and Electronics Engineers, Erik Jan Marinissen, Kathryn Bennett, and Yvette Ho Sang, Defendants Opinion No. 2017 DNH 035


          Steven J. McAuliffe United States District Judge

         Plaintiff, Intellitech Corporation, brings suit against defendants The Institute of Electrical and Electronics Engineers (“IEEE”), Erik Jan Marinissen, Kathryn Bennett, and Yvette Ho Sang for copyright infringement. Marinissen, Bennett and Ho Sang (collectively, the “Individual Defendants”) have moved to dismiss for lack of personal jurisdiction. As set forth herein, the Individual Defendants' motion to dismiss for lack of personal jurisdiction is granted.

         Standard of Review

         When a defendant challenges the court's personal jurisdiction under Fed.R.Civ.P. 12(b)(2), the “plaintiff has the burden of establishing that jurisdiction over the defendant lies in the forum state.” Baskin-Robbins Franchising LLC v. Alpenrose Dairy, Inc., 825 F.3d 28, 34 (1st Cir. 2016). In a case such as this, where the court rules based on the “prima facie record, ” the pleadings, affidavits, and other written materials, in the absence of an evidentiary hearing, “the inquiry is whether [plaintiff] has proffered evidence which, if credited, is sufficient to support findings of all facts essential to personal jurisdiction.” A Corp. v. All American Plumbing, Inc., 812 F.3d 54, 58 (1st Cir. 2016) (quoting Phillips v. Prairie Eye Ctr., 530 F.3d 22, 26 (1st Cir. 2008)).

         In making a prima facie showing of jurisdiction, a plaintiff may not rely only on unsupported allegations in its pleadings. A Corp., 812 F.3d at 58. “Rather, [a plaintiff] must put forward ‘evidence of specific facts' to demonstrate that jurisdiction exists.” Id. (quoting Platten v. HG Bermuda Exempted Ltd., 437 F.3d 118, 134 (1st Cir. 2006)) (additional citations omitted)). The court accepts plaintiff's “properly documented evidentiary proffers as true, ” and construes them in the light most favorable to plaintiff's jurisdictional claim. Id. (citing Phillips, 530 F.3d at 26) (additional citations omitted). The court also considers uncontradicted facts put forth by the defendant, but does not “credit conclusory allegations or draw farfetched inferences.” Negrón-Torres v. Verizon Communications, Inc., 478 F.3d 19, 23 (1st Cir. 2007) (citations and quotation marks omitted).


         The relevant facts, construed in the light most favorable to Intellitech, are as follows. Intellitech is a New Hampshire corporation with its principal place of business in Dover, New Hampshire. IEEE is a not-for-profit corporation, organized and existing under the laws of New York State, with corporate headquarters in New York, New York. Defendant Yvette Ho Sang is an IEEE Senior Manager, in IEEE's Risk and Licensing Department. She lives and works in New Jersey. Defendant Kathryn Bennett also works for IEEE as a Senior Program Manager, and lives and works in New Jersey. Defendant Erik Jan Marinissen is a citizen of the Netherlands and a resident of Belgium. Marinissen is not an employee of IEEE, but instead has volunteered his professional services since 1999; he is currently active in the organization in multiple capacities. Marinissen serves as an IEEE Fellow; he is on the editorial board of “IEEE Design & Test” magazine; and is a member of the IEEE Standards Association. Neither Ho Sang, Bennett nor Marinissen has ever travelled to New Hampshire for any business-related purpose.

         IEEE promulgates technical standards relating to electrical and electronic issues. IEEE's standards are developed collaboratively by working groups comprised of expert volunteers in the relevant field. Industry volunteers participate in meetings that are generally conducted remotely by conference call, either telephonically or via conferencing software (like WebEx). They draft and review position pieces, and create and review presentations made by other group members. Group meetings are typically held weekly or biweekly. Working group members do have access to IEEE's copyright policies.

         IEEE owns and operates a dedicated, password-protected website for each working group. Those websites are called “grouper sites.” The grouper sites act as a repository for the group's working materials, including drafts of standards, as well as other information working group participants might want other group members to review and consider. Working group members also routinely distribute such materials by email within the working group. Once finalized, adopted standards are published by IEEE and made available to IEEE members and the general public.

         Bennett has administrative oversight responsibilities for IEEE's working groups; she works with between 10 and 20 working groups at any one time. In that capacity, she oversees and maintains IEEE's grouper sites. Bennett is not responsible for drafting or contributing to the content of any standards (drafts, revisions or final versions). The record concerning Ho Sang's role with respect to the working groups is less clear. Intellitech alleges that Ho Sang oversees and instructs IEEE working groups regarding IEEE policies; defendants seemingly do not dispute that allegation, but Ho Sang does assert that she did not review any of the draft standards or working materials at issue in this suit.

         Beginning in late 2013, Intellitech CEO Christopher Clark participated in working group P1838. That working group was tasked with designing a new standard for “Test Access Architecture for Three-Dimensional Stacked Integrated Circuits.” The P1838 grouper site, and all content submitted to the site, was hosted on a server located in New Jersey, with backup replication in Arizona for disaster recovery purposes. Bennett had administrative oversight responsibilities for the P1838 working group.

         The P1838 working group was comprised of over 50 people from several different states and nine foreign countries. These individuals were divided into subgroups called “tiger teams.” Each tiger team met weekly, and the entire P1838 working group met biweekly. Meetings were held via conference call, most often via WebEx. Marinissen chaired the P1838 working group, and, in that capacity, participated as a member of all tiger teams.

         Mr. Clark was a member of Tiger Team 1, along with 13 other volunteers, including at least one other New Hampshire resident. Clark served as the scribe for Tiger Team 1, and, beginning in July 2014, served as its chair. Clark developed Intellitech's position piece on how serial access and pipeline registers should be managed by a 3D standard, which was entitled “Clause for a Pipeline” (the “Work”).[1] Clark regularly presented the Work to Tiger Team 1.

         As Tiger Team 1 discussions proceeded, Clark refined the Work, accepting some feedback from group members, but rejecting other feedback. Clark created 20 different iterations of the Work over time, presenting from New Hampshire each week and explaining the rationale for Intellitech's position. When Clark shared an iteration of the Work with the Tiger Team on the grouper site or by email, he sent the document in a secure Adobe Acrobat format PDF file that contained an “Intellitech” watermark. The file could not be edited by group members.

         On April 14, 2014, Marinissen emailed Clark, requesting a Microsoft Word version of the Work, so that he could make his suggested edits directly on the document. Clark emailed Marinissen a Microsoft Word version of the Work. Marinissen subsequently made suggested edits, changed the watermark from “Intellitech” to “IEEE, ” and circulated his edited version of the Work (still in Microsoft Word format) to Tiger Team 1 group members.

         Clark objected immediately to Marinissen's actions. He halted Tiger Team 1 meetings until the copyright issue was resolved. On September 2, 2014, Clark wrote a letter to IEEE's General Counsel and Chief Compliance Officer, complaining of Marinissen's actions and asserting Intellitech's position that those actions constituted infringement of Intellitech's copyright in the Work. On September 11, 2014, when Marinissen attempted to schedule a Tiger Team 1 meeting, Bennett emailed the team, indicating that the team would not meet until the copyright issue was addressed by IEEE.

         In early October of 2014, Clark again wrote to IEEE's General Counsel and Chief Compliance Officer, demanding that IEEE remove all copies of Intellitech's Work from its servers. Counsel for IEEE responded to Clark's letter on November 14, 2014, expressing IEEE's position that Clark and/or Intellitech did not own a copyright in the piece, but agreeing nonetheless to remove it from the P1838 website and all other IEEE websites. Clark personally verified that all copies of the document were removed from the IEEE servers, and Intellitech took no further action. Tiger Team 1 was formally disbanded in December of 2014.

         In February of 2015, the P1838 working group held a WebEx meeting in which Bennett and Ho Sang participated from their offices in New Jersey. During the meeting, Bennett and Ho Sang explained IEEE's general copyright policies to the working group. Intellitech's Work was not discussed during that meeting.

         Months later, a new P1838 working group, called Tiger Team 4, was formed. Tiger Team 4 included two New Hampshire residents, Brian Turmelle and Craig Stephan, both of whom are Intellitech employees. At a Tiger Team 4 meeting in December of 2015, Marinissen and another group member presented a draft document entitled “TT4Rules.” The TT4Rules document bore a notation indicating “Copyright© <year> IEEE, ” but purportedly contained material copied directly from Intellitech's “Clause for a Pipeline” work. The TT4Rules document was uploaded to the IEEE P1838 grouper site, and emailed to Tiger Team 4 team members, including Turmelle and Stephan, who received the emails in New Hampshire. Bennett also received an emailed copy of the TT4Rules document.

         Intellitech contends that IEEE's preparation, distribution and display of the derivative work was done under the “administrative oversight” of Bennett, and with Marinissen acting as chair of the P1838 working group. Based on the foregoing, Intellitech asserts ...

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