Cyberlaw Outline

LAW, COMPUTERS AND THE INTERNET
Notes: national and state borders are blurred b/c of the technology. The question is how do traditional legal concepts survive in this new medium?
 
I. JURISDICTION
Types:
Personal jurisdiction: the power of a court to adjudicate a particular defendant so that the judgments of that would be enforceable and recognized elsewhere.
General jurisdiction: a defendant has had continuous or systematic doings with the state so hailing him into court is legitimate.
Specific jurisdiction: some kind of minimum contacts with the state and some kind of cause of action that arises out of those contacts, so hailing him into that state seems fair and reasonable.
Theories of jurisdiction:
Everyplace theory: Website reaches anywhere in the world so anywhere where it’s visible, there is jurisdiction.
No place theory: actions that occur in the Internet occur no place and there should be allowed to evolve a cyberspace court that would adjudicate disputes in cyberspace.
Whatever activity that takes place on a website, takes place on the server (the originating server).
Test:
Minimum contacts: fair for the person to be hailed in a forum state.
                                                              i.      Whether the defendant purposefully established contacts with the forum state.
The claim asserted by the defendant must arise out of those contacts.
Exercise of jurisdiction must be reasonable.
                                                              i.      Reasonable if it does not offend traditional notions of fair play and substantial justice.
Zippo sliding scale: likelihood that PJ can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.
Is it passive? Is it an interactive?
Number and quality of the contacts?
The Zippo Spectrum:
(Integral) At one end, there is the case where a defendant clearly does commerce over the Internet. Defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmissions of computer files over the Internet – PJ is proper.
(Passive) At the other end, where a defendant has simply posted information on an Internet web site which is accessible to users in foreign jurisdictions. Passive websites that do little more than make information available to those who are interested in it. – PJ not proper.
(Interactive) Middle ground are interactive websites where a user can interact with the host computer.
                                                              i.      The exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the website.
                                                           ii.      In order to be fortuitous or coincidental, the company cannot have any subscribers in the forum state and communications regarding the company must come from an outsider.
Purposeful Availment: WEB PAGES
Bensusan Restaurant Corp. v. King: BLUE NOTE CASE
                                                              i.      Issue: whether the creation of a web site, which exists either in MO or in cyberspace, is an offer to sell the product in NY.
                                                           ii.      Held: no personal jurisdiction.
1.      PJ: the mere fact that a person can gain information on the allegedly infringing product is not the equivalent of a person advertising, selling or making an effort to target its product in NY. No allegation or proof that any infringing goods were shipped into NY or that any other infringing activity directed at NY or caused by King to occur there.
a.       Substantial revenue: must derive substantial revenue required from ISC, not mere participation.
b.      Foreseeability: defendant expects or should reasonably expect the act to have consequences in that state. D must make a discernable effort to serve, directly or indirectly, a market in the forum state.
c.       Significant economic injury: only indirect financial loss resulting from the fact that the injured person resides in NY.
2.      Purposeful Availment: no benefits derived from NY.
a.       Stream of commerce, but w/o more, is not purposefully directing toward the forum state.
3.      Continuous and systematic business: D did not actively seek out or encourage NYers to enter the site.
Zippo Manufacturing Co. v. Zippo Dot Com, Inc.
                                                              i.      ZM is in PA, ZDC in CA. ZDC owns website with three levels of membership: Free, Original, and Super (payment over Internet or phone).
                                                           ii.      Held: personal jurisdiction proper.
1.      Minimum contacts: ZDC has done more than create and interactive web site through which it exchanges information with PA residents in hopes of using that information for commercial gain later.
a.       Litigation arose out of contacts.
b.      Purposeful availment: ZDC has done more than advertise on the internet: ZDC has sold p