I. Jurisdiction over the Internet – Commercial Injury & Torts
a. Three Kinds of Jurisdiction
i. Legislative
1. was the law written to apply to anyone outside the boarders?
ii. Ajudacitive
1. can the court assert jurisdiction over particular plaintiffs
iii. Enforcement
1. does the government have the authority to enforce its law outside its jurisdiction or boundary.
b. Basic Jurisdiction Principles
i. Assuming state’s long-arm statute is satisfied, assertion of jurisdiction must comply with Due Process Clause
ii. International Shoe (1945) standard: “[D]ue process requires only that, in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’” (p. 35)
1. What are “minimum contacts?”
a. “The essence of the minimum contacts test is ‘that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’” Inset (p. 38) quoting Hanson v. Denckla
b. Contacts must not be “random, isolated or fortuitous” (Keeton v. Hustler)
2. What is the “effects” standard for jurisdiction over tort actions?
a. petitioners must ‘reasonably anticipate being haled into court there’
c. Stream of Commerce Problem
i. If the defendant was aware that the product would reach the state in question then there is a possibility of minimum contacts.
ii. If you are bringing a case you usually need more contacts than just the stream of commerce idea.
iii. Inset Jurisdiction Theory
1. “In the present case, Instruction has directed its advertising activities via the Internet . . . toward not only the state of Connecticut, but to all states. The Internet . . . [is] designed to communicate with people and their businesses in every state. Advertisement on the Internet can reach as many as 10,000 Internet users within Connecticut alone. Further, once posted on the Internet, unlike television and radio advertising, the advertisement is available continuously to any Internet user. ISI has therefore, purposefully availed itself of the privilege of doing business within Connecticut.”
2. Under this system online companies are virtually subject to jurisdiction almost anywhere.
3. The contact here is just that the site was made available to the residents throughout Connecticut. The consumer is not to blame, it is the company for putting it out there.
iv. Zippo Manufacturing v. Zippo.com
1. “[T]he likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet. This sliding scale is consistent with well developed personal jurisdiction principles. 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. . . .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. . . . 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.”
2. Sliding scale for purpose availment
a. Pure advertising- passive websites, possibly just a phone number and a picture on the screen. Wholly passive websites are probably not going to be enough for minimum contacts.
b. Middle ground- where some exchange can happen. Sometimes provide purposeful availment.
c. Interactive website- are usually going to be seen as sufficient for minimum contacts through purposeful availment.
v. ALS Scan
1. “[A]dopting and adapting the Zippo model, we conclude that a State may, consistent with due process, exercise judicial power over a person outside of the State when that person (1) directs electronic activity into the State, (2) with the manifested intent of engaging in business or other interactions within the State, and (3) that activity creates, in a person within the State, a potential cause of action cognizable in the State’s courts. Under this standard, a person who simply places information on the Internet does not subject himself to jurisdiction in each State into which the electronic signal is transmitted and received. Such passive Internet activity does not generally include directing electronic activity into the State with the manifested intent of engaging business or other interactions in the State thus creating in a person within the State a potential cause of action cognizable in courts located in the State.”
2. Looking for some evidence that the electronic activity is more than ads and was trying to engage in business within the state, something more than inset.
vi. ALS Scan & Calder
1. “In Calder, the Court held that a California court could constitutionally exercise personal jurisdiction over a Florida citizen whose only material contact with California was to write a libelous story in Florida, directed at a California citizen, for a publication circulated in California, knowing that the ‘injury would be felt by [the Californian] in the State in which she lives and works.’ . . . Analogously, under the standard we adopt and apply today, specific jurisdiction in the Internet context may be based only on an out-of-state person’s Internet activity directed at Maryland and causing injury that gives rise to a potential claim cognizable in Maryland.” (p. 47)
vii. The type of case matters
1. Contracts between one state and people in another, generally there will be minimum contacts because the contract will serve as the minimum contacts.
2. Intellectual property cases are more difficult. The plaintiff is defending a trademark, and the plaintiff and defendant have no contractual relationship.
II. Tortious Conduct
a. Bochan v. LaFontaine
i. Bochan Test for Tort Jurisdiction : (effects test)
1. “The statements made by all defendants posted on the Internet concerned the presumably local activities of an individual each knew was a Virginia citizen. Bochan, and several of his Virginia friends, accessed the postings in Virginia, and the reputational harm resulting from defendants’ actions and allegations of pedophilia and sexual deviancy, if any, has been primarily suffered in Virginia, where Bochan lives and works. Under these circumstances, because the predominant “effects” of the La Fontaines’ . . . conduct are in Virginia, these defendants could reasonably foresee being haled into court in this jurisdiction.”
ii. Torts v. Commercial cases
1. Just because a tort has been committed in a case, is a jump to conclude that equals purposeful avaliment.
III. Anticybersquatting Consumer Protection Act – 15 U.S.C. § 1125(d)(2)(A) … (Allows a trademark owner to sue to get back a domain name that contans your trademark. )
a. Rule: 15 U.S.C. § 1125(d)(2)(A)
i. “The owner of a mark may file an in rem civil action against a domain name in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located if—
1. (i) the domain name violates any right of the owner of a mark registered in the Patent and Trademark Office, or protected under subsection (a) or (c) of this section; and
2. (ii) the court finds that the owner—
3. (I) is not able to obtain in personam jurisdiction over a person who would have been a defendant in a civil action under paragraph (1); or
4. (II) through due diligence was not able to find a person who would have been a defendant in a civil action under paragraph (1) . . ..”
b. Cable News Network
i. True in rem- when court adjudicates property rights don’t need minimum contacts. Who owns the domain name, or who owns the property.
ii. Quasi in rem- allocates property rights as against particular named persons.
iii. Quasi in rem 2- non property Shafer requires minimum contacts only for these types of cases. (same as in personam)
IV. Jurisdiction – Contractual Clauses and Regulatory Authority
a. Contractual Choice of Law and Forum
i. Carnival Cruise
1. The plaintiffs went on the cruise of the defendants.
2. They file suit in Washington state, however there is a forum selection clause on the back of the ticket that the case will be tried in florida.
3. Look to see if the forum clause is reasonable.
a. Bad faith- if the company had a good reason for doing this, the court will not refuse to honor the clause because it’s a company behind it.
b. Fraud/overreaching- if the contract is invalid the clause will be as well.
c. Was the party free to say no?
4. If the forum selection cla
(a) if the person is given notice of the claims or charges against him that is reasonable in the circumstances;
2. (b) if the person is given an opportunity to be heard, ordinarily in advance of enforcement, whether in person or by counsel or other representative; and
3. (c) when enforcement is through the courts, if the state has jurisdiction to adjudicate.”
f. Post, Governing Cyberspace law (LJ Article)
i. Unexceptionalist- approach the internet with no exceptions for laws as they stand.
ii. Exceptionalist- make new rules for the internet. All governing international laws, self governing.
g. Chang v. Virgin Mobile
i. Virgin mobile used pictures in an ad campaign with pictures from a website where users upload their personal photos.
ii. Is there personal jurisdiction over this non US entity?
1. The types of contacts with Austrialia
a. Server argument- Virgin touched Flicker servers in texas, this put Virgin in texas. Court says there are not enough facts that the server in texas was the one that was actually used. The fact that the server was in texas was fortuitous and merly touching a server is too minimum a contact.
b. Cintract, Liscense agreement, under which Virgin had no rights to use the photo. Usually a contract will be sufficient to justify jurisdiction. However, Mr wong has granted almost complete rights by putting the photo on this site, in Texas. Virgin accepted in Austrialia. Court says texas is irrelavent to the contract.
c. Directed at Defendant. The defendant has no knowledge where the defamed person is.
2. Court dismissed for lack of minimum contacts.
VI. Regulating Speech in Cyberspace – Indecency
a. Reno v. ACLU
i. There is indecent stuff going on on the internet and we need to do something about it. Congress Promulgates a Statute Communications Decency Act: 47 U.S.C. § 223(a) This action is Facial challenge to the statute, meaning the statute has not be applied yet.
1. Once something is actually obscense the first amendment gives way. This statute also includes indecent speech. Is congress going to allow indecent speech directed to monors. (via the internet).
ii. Statement of the actual test for constitutionality of a content based speech restriction.
1. Is there a compelling governing interest?
2. Is the statute narrowly tailored to achieve that interest?
3. Is the statute using the least restrictive means?
iii. Courts Analysis:
1. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve. (…)
2. It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults.
3. Holds Statute unconstitutional and unenforceable, except for cases of obscenity or child pornography, because they abridge the freedom of speech protected by the First Amendment and are substantially overbroad. The Internet is entitled to the full protection given to media like the print press; the special factors justifying government regulation of broadcast media do not apply.
a. Reasoning that TV and radio broadcasts, “as a matter of history, had ‘received the most limited First Amendment protection’ … in large part because warnings could not adequately protect the listener from unexpected program content”, as opposed to Internet users, who must take “a series of affirmative steps” to access explicit material.
