Where is Waldo.com? Problems of Personal Jurisdiction in Cyberspace

Posted By:  Jeremiah Chin

10349418One of the earliest litigation decisions is where to file a law suit. Usually the lawsuit happens where the plaintiff lives, or where the injury involved occurred. But when the harm arises from internet communications, how do courts determine the proper place to file a law suit? Tracking exactly where the injury occurred on the internet may seem like a pipe dream in a series of tubes, attempting to put a physical location on harms in virtual space.

On one level, the internet has many physical properties, from the individual computers that access the internet to Internet Service Providers (ISPs) which maintain physical servers in different states. In a federal civil suit, a court must establish personal jurisdiction—or the power of the court to decide a case involving the named parties—in order to even reach the merits of the issue. Filing in the wrong forum may lead to an early dismissal if a court does not have specific or personal jurisdiction over a defendant. F.R.C.P. 12 (b) (2).

Personal jurisdiction has historically relied on minimum contacts with the forum state. Courts also consider whether: a defendant has directed activities to the forum state, a defendants’ activities make litigation in the forum state foreseeable, and the reasonableness of continuing litigation in the forum state. With the internet, courts must consider “traditional notions of fair play and substantial justice, “ International ShoeCo. v. State of Washington 326 U.S. 310, 316 (1945), in a nontraditional space like the internet as “technological progress has increased the flow of commerce between States,” Hanson v. Denkla, 357 U.S. 235, 250-251 (1958). General personal jurisdiction requires “continuous and systematic” contacts with the forum state. Helicopteros Nacionales de Colombia, SA v. Hall, 466 U.S. 408, 416 (1984). In Zippo Manufacturing Co. v. Zippo dot Com, Inc. a Pennsylvania District Court followed the Supreme Court’s long line of personal jurisdiction precedent to establish a sliding scale based on the “nature and quality of the commercial activity that an entity conducts over the Internet.” 952 F. Supp. 1119, 1124 (W.D. Pa., 1999). At one end of the scale is passive contact with the forum state (simply advertising on the internet) to active contact through directed, “knowing and repeated,” transactions over the internet. Id. In other words, a court is more likely to find personal jurisdiction over a defendant who actively and continuously pushes internet content into the forum state.

Although Zippo has become the generally accepted standard, Courts consider internet contacts in different ways, even within the same circuit. In 2009, a California District Court decided that YouTube’s servers being located in California were not enough to grant personal jurisdiction over the Ohio Republican Party’s for posting a commercial on YouTube, even though the plaintiff California-based musician was claiming copyright infringement and false association for using his song in the commercial. Browne v. McCain, 612 F.Supp.2d 1118,1124 (C.D. Cal. 2009). However in 2013, a District Court in Nevada found personal jurisdiction over a European defendant who uploaded a YouTube video of the defendant performing an illusion similar to plaintiff’s patented illusion because the defendant had purposefully directed activities, via YouTube, at Las Vegas, where plaintiff performs. Teller v. Dogge, No. 2:12-CV-591 JCM (GWF) (D. Nevada, 2013).

In these 9th Circuit cases, the defendants similarly uploaded a video to YouTube with alleged injurious material, misuse of a song in Browne and appropriation of an illusion in Teller, with very different results. Interestingly in Browne, the plaintiff sued where the servers of YouTube are actually located and where the injury likely occurred by falsely associating plaintiff with John McCain. However the Browne district court found it lacked personal jurisdiction over the Ohio defendant because Browne could not establish that defendant knew harm would arise in California. A key difference from Teller is Browne involved a political ad, but the Browne court did not consider any First Amendment issues in deciding the case. Teller on the other hand involved a European defendant, who evaded service of process and was only found through a private investigator, yet the Teller court found jurisdiction because plaintiff is a Las Vegas magician and the defendant admitted to spending a week in Las Vegas and purposefully directing activities at Las Vegas via YouTube. Teller is in the early stages of litigation, the plaintiff does not show evidence that the video was frequently viewed in Las Vegas or that YouTube has connections to Las Vegas, however the defendant did offer to sell instructions on the illusion at the end of the (now removed) YouTube video.

Thus even when the servers, an identifiable physical entity, can be clearly located, personal jurisdiction is not guaranteed. Filing suit where the harm occurs, usually the resident state of the plaintiff like in Teller or Zippo, seems to be more availing, so long as there is a direct commercial offering or purpose in the internet communication. Locating harms on the internet for personal jurisdiction purposes still appears difficult, particularly depending on how a given court interprets the opposing party’s motivations.

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