Specific

A non-resident defendant can be subject to specific jurisdiction only when each of the following three elements exists, and the particular long-arm statute’s requirement is fulfilled:⁴²⁹

1. the non-resident must purposefully avail himself of the privilege of conduction activities in the forum, thereby invoking the benefits and protections of its laws

2. the claim must be one which arises out of or result from the defendant’s forum-related activities

3. exercise of jurisdiction must be reasonable

The first prong is satisfied when the defendant’s contacts with the forum state proximately results from actions by the defendant himself that creates a “substantial connection” with the forum state, and when defendants conduct and connection to the forum are such that he should reasonable anticipate being haled into court there. It insure that random fortuitous or attenuated contacts do not cause a defendant to be haled into a jurisdiction.⁴³⁰

On the first prong, some courts use the “Effect Test,”⁴³¹ under which the purposeful availment requirement necessary for specific personal jurisdiction is satisfied.⁴³²

Under Calder⁴³³, personal jurisdiction can be based upon:

1. intentional actions

2. expressly aimed at the forum state

3. causing harm, the brunt of which is suffered-and which the

428Zippo at 1122.

429 Panavision-2 - Panavision International v. Toeppen, 141 F.3d 1313, 1320 (9^th Cir. 1998).

430Burger King at 474-475.

431 See i.e. Lofton v. Turbine Design, Inc., 100 F.Supp.2d 404 (N.D.Miss. 2000) , Cybersell, Panavision-2.

432Panavision-2 at 1322 and Cybersell in footnote 6, see the courts notice of having used the

“effects doctrine” in the later case Panavision-2 at 1321.

433 Calder v. Jones, 465 U.S. 783 (U.S. 1984).

defendant knows is likely to be suffered-in the forum state On the second prong, the Ninth Circuit uses a “But For Test,’ that is, the plaintiff would not have been injured “but for” defendant’s conduct directed toward plaintiff in the forum state.⁴³⁴

On the third prong, the court considers the fairness factors.

The Zippo court was only asked to consider specific personal jurisdiction and pointed out that it was neither an Internet advertising case nor an interactivity case through which the defendant exchanged information with forum residents in hope of using that information for commercial gain later. Rather, it was a case where the defendant was

“doing business over the Internet.” The defendant’s electronic commerce with the forum resident’s constituted purposeful availment because the defendant had contracted with approximately two percent/3,000 of the individuals and seven Internet access providers in the forum state.⁴³⁵

434 See i.e. MacConnell v. Schwamm, 2000 WL 1409758 (S.D.Cal. 2000) at *5.

435Zippo at 1226.

c. Cases where jurisdiction was found on Cyberspace-relation alone (“Pure-cases”)

This section will not use a website label-activity-system that many courts have used since such a “system” lacks any pattern, and case law, as Chapter III.D shows, is “inconsistent, irrational, and irreconcilable”.⁴³⁶

Rather, this section will use the term, “pure cases,” and deal only with U.S. cases where the decisions on personal jurisdiction have been made on facts “purely” related to the actual Cyberspace activity and where no

“physical shipment” has been made (“Pure cases”). Thus, cases involving facts other than Cyberspace facts will just be regarded as any other normal case with a variaty of facts.

Cases’ use of the term “’something more’ is needed” will not necessarily be sorted out from this section.

Where a decision has used the term “something more” as the equivalent with the “done more” in Zippo⁴³⁷ the case will be included in this section, when the actual whole conduct have been via Cyberspace.⁴³⁸

These pure cases are of special interest where U.S. jurisdiction has been exercised only on Cyberspace facts because this could happen anywhere in the world.

For this definition of a “pure”-case it is not important, whether specific or general personal jurisdiction is found.

An interesting aspect is whether or not a U.S.-court’s Cyberspace decision of finding it reasonable (fair play and substantial justice) to exercise personal jurisdiction will be used by other nations courts. Thus, making the same requirements on similar local related facts. The laws in many nations do not, at the moment, require its courts to do a fairness reasoning, but this must become an obvious “must” of international requirement in Cyberspace cases.

In the Reno-3-case from the beginning of 1999 it was noted that there were 3.5 million websites globally on the web and approximately on third of

436Millennium Enterprises at 916.

437Zippo at 1126.

438Zippo at 1124.

those sites are commercial, that is websites that intend to make a profit.⁴³⁹ The vast majority of information on the websites is provided to users for free.⁴⁴⁰

This section will categorize business cases where a person or company does business outside its principal place without having offices, warehouses, or personnel etc. in the place of the court’s state, and also do not do business via phone or post-order.

Excluded from this group will be cases where the actual business has been done solely on the customers activity via Cyberspace and where the vendor’s physical shipment of goods actual has been totally automatically executed, that is that a computer without vendor’s peoples’ interference has decided from what storehouse the goods should be shipped from. The reason for this exclusion is the existence of a physical shipment.

It should be noted that it is evident that no one can do business via Cyberspace without some kind of physically presence somewhere. Thus, the business will be referred in this section if the jurisdictional matter is not decided on the fact that the Cyberspace business in the courts forum state has a lease for an office, a computer, contracts with some producers, or employees etc.

It is evident and only naturally that the court where a defendant has a physical place not can treat the case as a “pure online” case.

Furthermore, this section will categorize cases where the court in its decision have only based the decision on facts strictly related to the online business, and have not relied on any other evidence.

Finally, this section will categorize a person or company being sued on i.e. a libel claim if this claim only is based on the use of Cyberspace, but at the same time has not been using i.e. ordinary mail, newspapers, or other actions besides on Cyberspace.

Of the 163 previous statistic mentioned cases were only 32 decided solely on facts related to Cyberspace. These figures should be compared to a total of approximately 2074 printed federal and state cases involving decisions on personal jurisdiction for the period of 1990 through December 2000. Therefore, it can be concluded that it is seldom personal jurisdiction have been decided on Cyberspace facts alone (1.5 %).

439Reno-3 at 486 no. 27.

440Reno-3 at 484 no. 23.

The primary choice of cases has been to find cases, which thoroughly have considered the personal jurisdiction question. Cases have not been chosen to exemplify different types of cases or types of (state) law.⁴⁴¹ The following two sections are divided into two main groups 1. “tort”-targeted cases and 2. on-line business, but to some extent could some of the cases be placed in both groups.

1. “Tort-Target” cases

The term, “tort,” in this section is used broadly to mean a wrongful act or omission for which some kind of damages can be obtained. The claim is based on the on-line contents.

In tort cases involving Cyberspace, the U.S. courts exercise jurisdiction, where the harmed person resides or in the forum where the tort is really felt and targeted toward. Some of the cases have used the Calder effect-test.⁴⁴²

(1) Defamatory statements

Many American Cyberspace cases have involved defamatory statements.

The court in Krantz v. Nottke⁴⁴³ held that the place were the server as a mediator, not the target to harm, was where jurisdiction could be exercised.⁴⁴⁴

The defendant, Nottke, sent true but scandalous information to a union bulletin board (server) anticipating that other labor union members would distribute the information further and prevent the plaintiff from getting

441 On summery of U.S. Internet Case Law after subject matter, see i.e. John F. Delaney and William I. Schwartz, Morrison & Foerster LLP, The Law of the Internet: A Summary of U.S. Internet Caselaw and Legal Developments, PRACTISING LAW INSTITUTE, 587 PLI/PAT 73 (JAN. 2000).

442Panavision- 2 at 1322, Cybersell at footnote 6 and Calder v. Jones, 465 U.S. 783 (U.S. 1984).

443 Krantz v. Air Line Pilots Association, 427 S.E.2d 326 (Va. 1993). On question of protection of thirdparties access to password protected websites, see Konop v. Hawaiian Airlines, Inc., --F.3d--, 2001 WL 13232 (9^th Cir. 2001)(Airlines vice-president got access to a pilot’s critical website with use - after permission - of other pilot’s name.

444See also a similar decision in Christian Science Board of Directors of First Church of Christ, Scientist v. Robinson (& Nolan), 123 F.Supp.2d 965 (W.D.N.C. 2000) mentioned in section III.D.a.1. Otherwise in the defamation action case Jewish Defense Organization, Inc. v. The Superior Court of Los Angeles County, 72 Cal.App.4^th 1045 (Cal.App.4^th 1999), where the California Court of Appeals held the place of the Internet Service Provider in the forum state were not sufficient basis for either general or specific jurisdiction.

employment. The Supreme Court of Virginia held that the place of the server allowed jurisdiction because defendant had targeted the server’s place. Neither the plaintiff nor Nottke lived in Virginia. The court noted that the communication alone was not a tortiuous act, but that Nottke’s whole scheme using the server as a mediator was a tortiuous act.⁴⁴⁵

In the case, National Petroleum Marketing v. United Communications Group, Ltd. & Mary Welge,⁴⁴⁶ jurisdiction over the journalist and the publisher could be exercised in Utah, where plaintiff had principal place;⁴⁴⁷ and also where some alleged defamatory statements by reporter-defendant were contained in an article published by a Maryland company on a computer bulletin for the oil industry, transmitted over a private satellite system and automatically received by subscribers on their screen.

The article was also available on a bulletin board via modem. Some of the plaintiff’s credit lines were terminated by some of the defendant’s subscribers and the plaintiff’s oil-suppliers.

The defendants in Telco Communication v. An Apple a Day⁴⁴⁸ should have reasonably known that their press releases would be disseminated in Virginia. They “certainly knew” that the plaintiff was based in Virginia.

The co-defendant wrote the press releases at issue in Missouri and placed them on Business-Wire for distribution to Connecticut, New York and New Jersey. ⁴⁴⁹

The court noted defamation, like libel, occurs wherever the offensive material is circulated or distributed. The Virginia long-arm statute permits personal jurisdiction over a person who causes “tortuous injury by an act or omission in this Commonwealth.” Finally, the court held that defendants should reasonably have known that the press releases would be received in Virginia.⁴⁵⁰

445Declined to follow by Booth v. Leaf, 40 F.3d 1243 (4th Cir. 1994).

446 National Petroleum Marketing v. United Communications Group, Ltd. & Mary Welge, 902 F.Supp. 1459 (D. Utah 1995).

447 Publisher had also some printed weekly newsletters. But these seem not to have been involved in the case or influenced the courts decision.

448 Telco Communication v. An Apple a Day, 977 F.Supp. 404 (E.D.Va. 1997).

449 Declined to follow by Fix My PC, L.L.C. v. N.F.N. Associates, Inc., 48 F.Supp.2d 640 (N.D.Tex. 1999); Barrett v. Catacombs Press, 44 F.Supp.2d 717 (E.D.Pa. 1999); Harbuck v. Aramco, Inc., 1999 WL 999431 (E.D.Pa. 1999). Distinguished by Rannoch, Inc. v.

Rannoch Corp., 52 F.Supp.2d 681 (E.D.Va. 1999; Dagesse v. Plant Hotel N.V., 113 F.Supp.2d 211 (D.N.H. 2000); Rollin v. William V. Frankel & Co., Inc., 996 P.2d 1254 (Ariz.App. Div. 2 2000).

450 The Virginia court found also jurisdiction could be exercised on ground of another Virginia long-arm statute by reasoning defendants advertising on a website was doing business as in the Inset System v. Instruction Set, 937 F.Supp 161 (D.Conn. 1996).

In Bochan v. La Fontaine⁴⁵¹ the defendant, La Fontaine, posted libelous messages from Texas on an Internet newsgroup that accuseed the plaintiff, a Virginia resident, of being a pedophile. This happened under

“correspondence” initiated by plaintiff posting criticisms of La Fontaine’s book on the Kennedy conspiracy theories on a Usenet newsgroup.⁴⁵²

La Fontaine had posted the message using an AOL account, and accessed the Internet through the defendant’s Internet service provider, Earthlink, located in Pasadena, California. AOL is located in Herndon, Virginia. La Fontaine did not have a website or do commercial activity on the Internet.

The court noted in this case from May of 1999 that the question was whether La Fontaine committed a tort (i.e. libel) in Virginia by posting certain messages to an Internet newsgroup via AOL and Earthlink. It further noted that since the Krantz-case courts has focused in large measure on the location of the Internet service provider or the server on which the bulletin board is stored and the role played by this service or hardware in facilitating the alleged tort.

The court in Virginia found jurisdiction over La Fontaine because the use of AOL’s Usenet server, located in Virginia, was integral to the defamatory statement publication. There the message was both stored temporarily and transmitted to other Usenet servers around the world.

A California court found in Nicosia v. De Roody⁴⁵³ that exercise of jurisdiction reasonable in a case brought by aCalifornia-plaintiff for slander and libel in connection with statements the defendant published about the plaintiff on her web-site. According to the complaint, the defendant had called the plaintiff a killer, an embezzler, a criminal, a fraud, a perjurer, and a liar.

The court noted merely creating a web-site accessible by residents of the forum state did not satisfy the reguirement for purposeful availment.

451 Bochan v. La Fontaine, 68 F.Supp.2d 692 (E.D. Va. 1999).

Distinguished by Dagesse v. Plant Hotel N.V., 113 F.Supp.2d 211 (D.N.H. 2000).

452 The court noted that “articles” on Internet newsgroups are essentially analogous to email messages, except that are published, i.e. they are on the Internet and generally available to anyone accessing the newsgroup.

Generally when an individual user with access to a Usenet server posts a message to a newsgroup, the message is automatically forwarded to all adjacent Usenet servers that furnish access to the newsgroup, and it is then propagated to the servers adjacent to those serves, etc..

The messages are temporarily stored on each receiving server, where they are available for review and response by individual users. The messages are automatically and periodically purged from each system after a time to make room for new messages.

453 Nicosia v. DeRoody, 72 F.Supp.2d 1093 (N.Cal. 1999).

The plaintiff had to show that the defendant did direct her activities toward the state of the court.

The court held that the plaintiff had sufficiently shown the defendant had sent at least eleven e-mails, out of a total of one hundred, to California addresses, inviting the recipients to view the articles on her web-site. The percentage of California contacts was 10%.

The court held it made of no difference whether or not the defendant actually delivered the defamatory material into the forum state, or e-mails merely invited people to view her web-site. The requirement considers whether or not a defendant sufficiently directs her activities toward the forum state. The defendant’s e-mail invitations targeted California residents in a way similar to sending the defamatory material itself.

The Court found the defendant purposefully directed her activities toward California and the purposeful availment requirement was satisfied. It noted that “but for” defendant’s posting of her articles on her web-site and sending e-mails to Californians, plaintiff’s claims against defendant would not have arisen.

The case United States v. Kammersell⁴⁵⁴ dealt with the question of whether or not a threat-message sent from and to a person in the same state was transmitted inside a state, because otherwise the court would have no jurisdiction.

The defendant at the age of nineteen logged on to the Internet service provider AOL from his home computer in Riverdale, Utah. His girlfriend was employed at AOL's service center in Ogden, Utah. He sent a bomb threat to her computer terminal via "instant message," hoping that the threat would enable her to leave work early so they could go on a date.

The instant message was automatically transmitted through inter-state telephone lines from his computer in Utah to the AOL server in Virginia, and then back to Utah to his girlfriend's terminal at the Ogden service center, because every message sent via AOL automatically goes from the state of origin to AOL's main server in Virginia before going on to its final destination. This pattern of transmission is the same whether the communication is an electronic mail (e-mail) message or an instant message.

454 United States v. Kammersell, 196 F.3d 1137 (10^th Cir. 1999) which affirmed United States v.

Kammersell, 7 F.Supp.2d 1196 (D. Utah 1998). Certiorari Denied by Kammersell v. U.S., 120 S.Ct. 2664 (U.S. 2000).

The defendant claimed that the jurisdictional element of § 875(c)⁴⁵⁵ could not be met if based solely on the route of the transmission, where the sender and recipient are both in the same state. He further pointed out that the statute, adopted at the time the invention of the telegraph, did not take into consideration that in modern times many local telephone calls and locally-sent Internet messages are routed out of state, thus federal jurisdiction would exist to cover almost any communication made by telephone or modem, no matter how much it would otherwise appear to be intrastate in nature.

The court held a a federal crime existed because a threat had been transmitted out of state. It found it irrelevant whether or not the transmission was an “instant message” that could only be sent if the recipient was online at the same time of transmission, or as an e-mail that might be held in a holding center until it was retrieved.

(2) Use of other peoples Mark

Many cases have dealt with domain names. The trend in U.S. case law is that either the defendant has to be a “cybersquatter” or that the use of the domain name is part of unfair business before courts are willing to exercise personal jurisdiction on basis of a domain name.

When it comes to simply registering someone else’s trademark as a domain name and using it for the URL to a website on the Internet, this is not sufficient to subject a party domiciled in one state to the jurisdiction of another.⁴⁵⁶

However, a cyberpirate, who does business by registering and selling others marks as domain names, can be sued where the owner of the mark is doing its business. This is because such cases are treated as tort cases

455 18 U.S.C. § 875(c ) providing: “Whoever transmits in inter-state or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years”.

456Panavision-2 at 1321.

The Anti-Cybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d) offers in rem jurisdiction in certain situations requires “bad faith”, see i.e. Harrods Ltd. v. Sixty Internet Domain Names, 110 F.Supp.2d 420 (E.D.Va. 2000), Shields v. Zuccarini, 89 F.Supp.2d 634 (E.D.Pa. 2000) and Morrison & Foerster, LLP v. Wick, 94 F.Supp.2d 1125 (D.Colo. 2000)(finding bad faith and rejecting defendant’s argument that confusional domain name’s website only presented parody of plaintiff’s law firm).

The Act will probably lose some of its indented purpose with the decision of ICANN to let pAsia to become a fully competitor with NSI as registrator of “.com”, “.net” and

“.org” suffixes to domain names in English, traditional Chinese, simplified Chinese, Japanese and Hangul (Korean).

where the harm is felt at the plaintiffs place⁴⁵⁷ under the "effects test," the purposeful availment requirement necessary for specific personal jurisdiction is satisfied.⁴⁵⁸

There must be more evidence than just that of the existence of a website to demonstrate that the defendant directed his activity toward the forum state.

The court in Panavision-2 held, that had been shown.

Defendant was engaged in a scheme to register plaintiff’s trademarks as his domain names for the purpose of extorting money from plaintiff.

Defendants conduct, as he knew it likely would, had the effect of injuring plaintiff in California where plaintiff had its principal place of business and where the movie and television industry was centered.

The court pointed out defendant did considerably more than simply register plaintiff’s trademarks as his domain names on the Internet. He registered those names as part of a scheme to obtain money from plaintiff.

Pursuant to that scheme, he demanded $13,000 from plaintiff to release the domain names to it.

His acts were aimed at plaintiff in California, and caused it to suffer injury there.⁴⁵⁹

But for defendant’s conduct, the injury would have occurred; and thus the court found plaintiff’s claim rose out of defendant’s California-related activities.

Exercise of jurisdiction was reasonable.⁴⁶⁰

Exercise of personal jurisdiction is also found at the principal place of business for a owner of a mark, when, for example, a company in the same business intentionally registers the others mark as its domain name, and uses it to get the competitors customers to go to its own website. This is because the misuser will know that the harm will felt at the mark owners principal place and anticipate being haled into court there.

457Panavison-2 at 1321.

As similar decision was was in MacConnell v. Schwamm, 2000 WL 1409758 (S.D.Cal.

2000), where a Japanese had registered 50 domain names, whereof one was the one plaintiff had used until its domain name provider filed for bankruptcy and released the name without notice to plaintiff. Jurisdiction was not unreasonable because Japanese-defendant maintained real property in California and thus was not wholly unfamiliar with the state or its laws.

458Panavision-2 at 1322.

459Panavision-2 at 1318.

460Disagreed with by Hasbro, Inc. v. Clue Computing, Inc., 66 F.Supp.2d 117 (D.Mass. 1999);

Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573 (2^nd Cir., 2000). Declined to follow by HQM, Ltd. v. Hatfield, 71 F.Supp.2d 500 (D.Md. 1999).

In document CYBERSPACE JURISDICTION IN THE U.S. (sider 143-157)