Article Title: Seven Cases That Shaped the Internet in 2001 or the First Thing We Do, Let's Kill All the Lawyers1 Part Ii

• Jurisdiction: United States,Federal
• Citation: Vol. 2002 No. 08 Pg. 08-6
• Pages: 08-6
• Publication year: 2002

Utah Bar Journal Volume 8.

08-6 (2002). Article Title: Seven Cases That Shaped the Internet in 2001 or The First Thing We Do, Let's Kill All the Lawyers1 Part II

August, 2002

Article Title: Seven Cases That Shaped the Internet in 2001 or The First Thing We Do, Let's Kill All the Lawyers1 Part II

Author: Miriam A. Smith

Article Type

Utah Law Developments

Article

I. INTRODUCTION

In the April issue of the Utah Bar Journal we examined the issue of "new uses" of copyright material in cyberspace. This article considers two recent cases on the international aspect of Internet law and one on the circumstances under which Internet Service Providers enjoy immunity in cases of copyright infringement

II. JURISDICTION

Make mad the guilty, and appall the free,

Confound the ignorant, and amaze indeed

- Hamlet, Act 2, scene 2

Two cases have shaped jurisdiction as it relates to website activity: Batzel v. Smith(fn2) and Yahoo! Inc v. La Ligue Contre Le Racisme Et L'Antisemitsme.(fn3) In Batzel a U.S. District Court exercised jurisdiction over a Dutch web site while the court in Yahoo! refused to enforce a French Court's orders which did not meet U.S. constitutional standards.

Batzel v. Smith

Ellen Batzel is an entertainment lawyer who has a number of Jewish clients in California. Bob Smith painted Batzel's North Carolina home and asked her to submit his script to her clients in California. When Batzel refused the request, Smith apparently retaliated by sending an e-mail to the Dutch based museum industry website, MSN, claiming he had worked "in the home of a lawyer who claimed to be the granddaughter of Heinrich Himler and who bragged about having an art collection stolen from Jewish families by the Nazis."(fn4)

MSN's creator and operator, Tom Cremers, published the e-mail and related updates on five separate occasions without verifying the allegations. Batzel claimed to have been damaged by this publication in that she lost several prominent clients in California and was subjected to an investigation by the North Carolina Bar.

She sued in California. MSN and Cremers challenged the California court's jurisdiction over them.

California as most states allows the exercise of personal jurisdiction so long as due process requirements are met. Due process requires that: (1) a defendant have performed an act, completed a transaction or otherwise availed himself of the privileges of conducting activities in the forum state; (2) the claim must arise out of the forum-related activities; and, (3) the exercise of jurisdiction is reasonable.(fn5)

MSN and Cremers had sufficient California contacts. Cremers sent his newsletter, via Internet, to California multiple times per week; a number of California businesses and organizations subscribed to Cremers' newsletter; Cremers republished articles from various California newspapers; and Cremers had traveled to California where he solicited subscribers for the MSN newsletter, promoted the MSN website and sought corporate sponsors.(fn6)

The court also found that Batzel's claim arose out of forum-related activities. The newsletter was published in California and read by California residents who, due to the false statements in the newsletter, ceased doing business with Batzel.(fn7)

And finally, California's exercise of jurisdiction over the Dutch website and its creator and operator was held to be reasonable. California courts look at seven factors to determine reasonableness of the exercise of jurisdiction.(fn8) Key to the court's analysis on this point was the fact that Cremers had interjected himself into the Los Angeles art world. He had retained a prestigious Los Angeles firm to represent him and could communicate with counsel via the Internet without leaving Holland. The court also noted that the MSN website is written in English, not Dutch, and that no "viable, alternative" forum in which to resolve this dispute existed.(fn9)

Related to the question of jurisdiction is the issue of forum non conveniens. This issue is a discretionary matter with the court who considers the availability of an alternate forum and then weighs private and public factors. Private factors include: where the parties reside, how convenient is the forum to the litigants, access to evidence, the availability of witnesses, cost, the enforceability of a judgment and other factors to make the trial of a case "easy, expeditious and inexpensive."(fn10)

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