cyber law jurisdiction
TRANSCRIPT
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Internet Jurisdiction
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Internet Personal Jurisdiction
When does a court have power over particularperson? Example: Can a resident of Pennsylvania be sued in
California for breach of an online contract?
Who decides? The court decides on its own jurisdiction.
Personal jurisdiction is largely geographic Acts, parties, physical presence in a state
Acts causing damage or injury in the state
BUT: the Internet does not respect geography Often cant tell where someone is
Cant tell routing, cable location, optical fiber, servers, etc.
Does it matter?
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Internet Jurisdiction
Maintaining website that regularly sends information into theforum state on request is sufficient for general jurisdiction.
Maritz, Inc. v. CyberGold, Inc., 947 F.Supp. 1328 (E.D. Mo.1996). Opinion.
CyberGold had a website in California that sentadvertisements to interested users who signed up to receivethem
CyberGold had no employees or physical presence inMissouri
Maritz, a Missouri corporation, alleged trademark
infringement Held: Missouri jurisdiction proper. CyberGold automatically
and indiscriminately responds to each and every user whoaccesses its web site
NOT JUST JURISDICTION
OVER WEBTRANSACTIONS
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Internet Jurisdiction Issues
Where does an Internet company reside? Where any of its servers is located?
Where the domain is registered?
Along the path where messages are routed to it?
Where more than 3 employees work?
Where its ISP is located?
Where a lot of computers are located?
Where orders are taken?
Where orders are filled?
Where goods are stored? What about information goods?
Do any of these distinctions make sense?
Do we need Internet courts?
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08-732 LAW OF COMPUTER TECHNOLOGY FALL 2009 COPYRIGHT 2009 MICHAEL I. SHAMOS
Zippo: Internet Jurisdiction
Courts recognize three types of eCommerce activity Doing business over the Internet the knowing and repeated transmission of computer files over
the Internet
Personal jurisdiction proper
Passively informational websites little more than an electronic billboard for the posting of
information
No personal jurisdiction
Gray area: defendant has a website that allows a user to exchange
information with a host computer
jurisdiction depends on nature of the information transmittedand degree of interaction.
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Intercon Case
Intercon, Inc. v. Bell Atlantic Internet Solutions, Inc., 205 F.3d1244 (10th Cir., March 9, 2000). Full text.
Intercon is an Oklahoma ISP (icon.net)
Bell Atlantic Internet Solutions is a Delaware corp. offering dialupISP service in the northeast US. No presence in Oklahoma
Bell Atlantic mistakenly routed its email traffic to icon.net insteadof to its subcontractor iconnet.net
icon.net was choked with email, severely affecting its ISP service.Took 7 months for Bell Atlantic to correct the problem
Intercon sued Bell Atlantic in Oklahoma
HELD, jurisdiction proper because defendant purposefullyavailed itself of the Oklahoma server for months after beingnotified of the erroneous address
(District Court dismissed the case; Court of Appeals reversed.)
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08-732 LAW OF COMPUTER TECHNOLOGY FALL 2009 COPYRIGHT 2009 MICHAEL I. SHAMOS
Effect ofForum Selection Clauses
Williams v. America OnLine, Inc., (2001 Mass. Super. No. 00-0962)
Software downloaded by AOL damaged Williams computer
Williams consented to an online Terms of Service contractcontaining the clause: You expressly agree that exclusive
jurisdiction for any claim or dispute with AOL or relating in any way toyour membership or your use of AOL resides in the court of Virginiaand you further agree and expressly consent to the exercise ofpersonal jurisdiction in the courts of Virginia in connection with anysuch dispute .
Williams was already an AOL member; previously agreed to a
Virginia forum selection clause Damage to computer occurred before Williams agreed to new
contract. New contract governs, but forum selection clause isunenforceable!
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Butler v. Beer Across America
Beer Across America (BAA): Illinois company selling beer over the Internet;no offices, assets or personnel in Alabama; never visited Alabama
Butler and her son, a minor, live in Alabama. Son bought 12 bottles of beerfor $24.95 from BAA by ordering over the Internet
The Alabama Civil Damages Act provides for a civil action by the parent orguardian of a minor against any person who unlawfully sells or furnishes
spiritous liquors to such minor and may recover such damages as the jurymay assess.
Butler brought suit against BAA in Alabama. (Why?)
BAA had sold beer to other Alabama residents, bought beer from Alabamabrewers. Advertised nationally, but not specifically in Alabama
HELD: no personal jurisdiction over BAA in Alabama. Website electronicversion of a postal reply card
Butler is not without remedy. Case was transferred to court in Illinois.
Butler v. Beer Across America, 83 F.Supp. 2d 1261 (N.D. Ala. 2000)
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Bases of International Jurisdiction
Territoriality principle regulate conduct within its territory
Nationality principle regulate conduct of nationals, wherever they are
Effects principle
regulate conduct having effect in the state
Universality principle jurisdiction over crimes that are universally condemned
Protective principle jurisdiction over defendants who threaten security of a state
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The iCraveTV Case
TORONTO
UNITED STATES
CANADA
PITTSBURGH
NY
PA
BUFFALO
US TV stations broadcast from Buffalo
iCraveTV set up receivers in
Toronto, Canada
iCraveTV registered the iCraveTV.com
domain name in Pittsburgh
iCraveTV.com
No iCraveTV servers in the US
iCraveTV was sued in Federal Court inPittsburgh by TV networks, movie
studios and sports leagues for copyright
infringement
Do US courts have jurisdiction?
iCraveTV wrapped it own advertising
around the images and served them
to anyone visiting its website
Received US TV signals, stored themon a streaming RealServer in Canada
RealServer iCraveTV is a Canadian company owned
Pennsylvania residents
iCraveTV
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Yahoo! Nazi Memorabilia Case
The Penal Code of France, Sec. R6456, makes it an offense other than for the needs of a film; a show or an exhibit enjoying
historical context,
to wear or exhibit in public a uniform, an insignia or an emblem whichevokes the uniforms, insignia or the emblems which were worn orexhibited [by Nazis]
Penalty:
fines; higher for subsequent offenses
confiscation of the object used to commit the infraction
perform public service; prohibition against carrying firearms for 3 years
Yahoo! auctions routinely offered Nazi items Yahoo! Inc. is a California corporation
Yahoo! France is a joint venture between Yahoo! Inc. and Softbank,a UK corporation
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Yahoo! Nazi Memorabilia Case
Yahoo! Inc. and Yahoo France were sued in France by LICRA(League Against Racism and Antisemitism) and UEJF (Union ofFrench Jewish Students) to enforce R6456
Yahoo argued:
Court had no jurisdiction over it
Yahoos content is directed to US internauts Yahoo servers are in the US
Any order against Yahoo could not be enforced in the USbecause of freedom of speech
HELD, France has jurisdiction over Yahoo because
violation of the Code was disruptive to public order
visualization of Nazi objects causes grief in France
Yahoo (US) offers French content to users in France
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Yahoo! Nazi Memorabilia Case
Yahoo! initially complied with the French order
Dec. 2000 Yahoo filed a declaratory judgment action in Californiaagainst LICRA and UEJF
asserts jurisdiction on grounds that:
LICRA, UEJF sent cease-and-desist letters into California
LICRA, UEJF agreed to Yahoos terms of service
LICRA, UEJF used the U.S. Marshal to serve process
alleges:
Yahoo cannot comply on technological grounds
French order chills freedom of expression in the U.S.
Online service providers are immunized by DMCA
Feb. 2001 Yahoo announced it would no longer comply
SUCCEEDED
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Yahoo! Nazi Memorabilia Case
Nov. 2001 California court granted summary judgment that the FirstAmendment precludes enforcement within the United States of aFrench order intended to regulate the content of its speech over theInternet. 169 F. Supp. 2d 1181 (N.D. Cal. 2001)
What is at issue here is whether it is consistent with the Constitution
and laws of the United States for another nation to regulate speechby a United States resident within the United States on the basisthat such speech can be accessed by Internet users in that nation.
Appeal to the Ninth Circuit, which held that California had nojurisdiction over LICRA (no purposeful availment) so it reversed the
District Court. The French decision stands but is not enforceable in the United
States.
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Significance ofYahoo!
Goes way beyond Nazi memorabilia Basic question:
When acts performed in country A are legal in A butviolate the laws of B because of transmission over theInternet: Whose laws apply?
Does B have jurisdiction?
Should A act in aid of any judgment against its own citizen?
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Major Ideas
Jurisdiction is largely territorial Territories make little sense on the Internet
The Zippo test is alive and well
Jurisdiction should be predictable, but isnt
Federal action may be necessary International jurisdiction is complicated by the
interaction of different legal systems
An Internet treaty may be required
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QA&
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Soma v. Standard Chartered Bank
Soma Medical International v. Standard Chartered Bank, 196F.3d 1292 (10th Cir. 1999). Full text.
Soma is a Delaware corporation doing business in Utah
Standard Chartered Bank (SCB) is a UK bank with an office inHong Kong (no presence in Utah)
Soma had an account with SCBs Hong Kong office SCB maintained a website accessible from Utah
Defendant Fong submitted a forged signature card to SCB; thenwithdrew $250,000 from Somas account
Soma sued SCB in Utah
HELD, no jurisdiction in Utah since SCB had a passive Web sitethat does little more than make information available to those whoare interested