Cyberlaw Spring 2011– Prof. Jane Henning
I. History of the Internet
A. Characteristics of Internet:
1. Always changing
2. Speed/breadth
3. External posting
4. Decentralized
5. Less regulation/self-regulating
6. Transcends usual physical boundaries
7. Universities/military were early users of internet
8. Earlier users where more technically savy
B. Regulation of Internet
1. Evolution of View the Web is the Wild West – started w/ defense dept, then to universities, so it was research oriented among digerati as a way of communicating research info solely among themselves (that required some technical expertise), gave them sense that “this is something we own” that we will self police, so no one can control it, we can exchange info for free, that shaped Barlow’s + early view of Web
2. Barlow – Decl of Indep of Cyberspace –radical view: place of freedom (wild west) where govt cant prevent us from doing what we want b/c I users don’t consent to be governed + mind is free so I is just a big brain w/ info exchanges that can’t be governed.
C. Reno v. ACLU (1997): Facial challenge to the constitutionality of the Communications Decency Act (“CDA”)
1. CDA which sought to protect minors from harmful material on the internet by imposing criminal penalties upon persons who:
a. knowingly transmitted obscene or indecent messages
2. Holding:
3. Supreme Court’s views on internet
a. Uses outdated statistics of # of users
b. Outdated view that u must navigate to porn sites in order to find it (don’t get to them by accident).
c. Tries to analogize I to something they’re familiar w/ – Says internet is more like print media (less regulation b/c u have make an effort to go access it) THAN broadcast media (more regulation of speech b/c people can just have it on + kids can accidentally see something, more pervasive).
d. Development – ICAN decided that companies can buy new top level domain named dot Microsoft or dot apple + everyone else is stuck w/ dot com. Charging six figures (reasonable) to get one of these names(Rat – they’re running out of network addresses) and in other languages/can use non Roman characters.
e. Will lead to gold rush for less popular companies to get that domain name. and might screw over those who registered say “porn.com” b/c now u can buy dot.porn.
II. Jurisdiction
A. Personal Jurisdiction over Internet Related Activities:
– Internet Q – when + under what circs can someone be sued in a state where the only connection they have w/ state is Internet. Q is whether something that occurs over Internet is enough to establish Minimum Contacts w/ forum state
Case
District
Claim
∆’s acts
PJ or not PJ
Reasoning
Inset
DC. CT 1996
TM infringement
D is MA corp. that does internet advertising w/ no business activities in CT {This was never overruled, but dubious b/c it would do away with traditional notions of personal jurisdiction, just by having a website if commercial, would subject someone to PJ anywhere
YES
District court says it has a 24 hour ad b/c it is on internet and 10k est. CT users could access ad. Site is accessible in state constitutes ongoing advertising there, thus MC.
Compuserve
6th Cir 1995
For declaratory relief
He sent the software to OH server; Burger King analysis; on-going relationship; OH law should govern; server physically located in OH; brick and mortar stores have much more physical contact
{narrow holding on facts based on location of server even if ∆ did not know where server was located}
YES
MC, analogous to distribution center and shipping to OH
Zippo
District court of PA 1997
Trademark infringement
News service into the state; 3000 PA subscribers, 7 contracts with PA internet providers
Sliding scale:
(1) passive- just posts info – no PJ
(2) interactive- PJ depends on how its interactive + what it does (i.e. blog news where you can post own comments)
(3) commercial – enter into commercial transactions ( i.e. amazon could be sued in any state it was doing business)
SS would have found Inset site passive + thus no PJ. That’s why the Inset case is dubious
YES
Zippo news. chose to have PA customers, so MC.
Paulovich
Cal S. Ct 2002
Misappropriated trade secrets
Passive website; did not distribute CSS yet (no licensing contracts); ∆’s knowledge that software could be used to copy movies and movie industry is concentrated in CA was not enough; could not have targeted P in CA since they were not up and running when the link was posted.
Uses Calder Effects test: does having website with effect in CA constitute MC?
(arg was that b/c movie industries would be most affected by the misappropriation)
If they used the Zippo test, it would be passive + thus no PJ right off, but they use the effects test _ deny PJ on that ground
NO
Paulovich didn’t directly target a CA entit; Could use Calder effects test for targeting industry in CA?
Brayton
9th Cir- 2009/2010
Copyright infringement
Improper PJ and improper venue; passive website; nothing on San Diego website indicated it was limited to SD clients; Lawyers in San Diego could practice anywhere in the state.
YES
Venue and PJ statewide
Boschetto
9th Ct-2008 cert. denied 2010
Buyer is suing for breach of contract; misrepresentation; and fraud
One-time contract for the sale of a good that involved the forum state only because that is where the purchaser happened to reside but otherwise created no “substantial connection” or ongoing obligations there; eBay site is at least interactive or doing business, but the eBay was not the defendant or plaintiff; therefore Zippo analysis is not valid; Pella window advertisement in Time magazine; need something more than that ad for PJ. Is putting up item for auction it is nationwide advertisement
No.
More traditional PJ analysis vs. situation specific [Zippo] and confused, internet dependant analyses; should we encourage online auctions?
Attaway
Ind. Ct. 2009
Seller from eBay transaction that rescinded
D personally availed themselves to forum state; not fair for seller to go to buyer’s home state
Yes.
Should it matter if one is a corporate entity
B. General Jurisdiction
1. Few cases which considered general jurisdiction (continuous, systematic, and substantial activities) over a corporation based only on its activity on website. (one case in DC circuit)
2. LL Bean in California, even though their main store location is Maine.
i. California district court found general jurisdiction based on sales volume (CSS in California).
i
onducts over the Internet.’
a. Analysis passive (no minimum contacts) vs doing business (min contacts established)
b. Zippo News tried to argue that PA subscribers were fortuitous; unilateral act on part of subscribers; website was passive
c. Could have declined giving them passwords if it did not desire to be sued in PA
d. Criticism of Zippo: “have sometimes severed to shorten the reach of long-arm statutes at a time when appearances in non-resident forums is less expensive and more convenient that ever.
8. Pavlovich v. Superior Court, 2002
a. Rule: Merely posting information on the internet that does not solicit or transact any business and permits no interactive exchange of information is not enough to constitute the purposeful Availment of a foreign states benefits as required under International Shoe’s three prong test to constitute the proper exercise of jurisdiction.
(i) A court may exercise specific jurisdiction over a nonresident defendant only if: (1) the defendant has purposefully availed himself or herself of forum benefits; (2) the controversy is related to or arises out of the defendant's contacts with the forum; and (3) the assertion of personal jurisdiction would comport with fair play and substantial justice.
(ii) Reasoning:
(1) Majority reasons that there was no availment and this no jurisdiction
(2) His sole contact with California was the posting of the source code on his Internet Web site, accessible to any person with Internet access; he owned no property, had no telephone listing, and conducted no business in California. Furthermore, the Web site merely posted information and had no interactive features.
(3) Merely posting information on the internet that does not solicit or transact any business and permitted no interactive exchange of information is not enough to constitute the purposeful availment
(4) Fails the effects test since it knowledge alone is insufficient to establish express aiming at the forum state as required by the forum state. Movie industries and software companies are not the plaintiffs. Effects are too remote. Plaintiff is licensing company. Claim is misappropriation of trade secrets.
(5) Dissent: broad intent to harm is sufficient for minimum contacts; foreseeable and his intention; does not like defendant
(6) Courts should not be prejudging whether claim is meritoriously or not; find fair forum; if there is no personal jurisdiction must raise motion to quash (court does not have evidentiary record before it, therefore it should not decide the claim on its merits)
(iii) Would it have made a difference if he was sued by movie studios in CA? Maybe for min contacts.
