Poking Along in the Fast Lane on the Information Super Highway: Territorial-based Jurisprudence in a Technological World - Brian E. Daughdrill

• Publication year: 2001

Special Contribution

Poking Along in the Fast Lane on the Information Super Highway: Territorial-Based Jurisprudence in a Technological World

Brian E. Daughdrill^*

I. Introduction

When Icarus slipped the surly bonds of Earth for the boundless expanses of heaven, he suffered the limitation of wings made of wax. Every school child knows the story of how, enamored with the power and freedom of soaring with the gods, Icarus flew closer and closer to the sun until its heat melted the wax and he fell into the sea.¹ Though he had transcended the territorial boundaries of Earth, he was limited by the man-created materials with which he escaped.

Today, Icarian adventurers slipping the bonds of a world defined by territories and countries via their departure into cyberspace suffer a similar limitation: The laws under which they make their escape were propounded and fossilized when every action of man could be defined by the real estate on which he existed. Personal jurisdictional analysis, conflict of laws, and trademark infringement all suffer from this earthly constraint, and Internet users must heed the cries of Daedalus² to be mindful of the jurisdictional limits that bound the boundless heavens. Whether posting a website or choosing a domain name, careful thought must be given to the market to be reached if the modern-day Icarus does not want to have his technological wings clipped by a court in a foreign jurisdiction to which he had no desire to submit.

Commercial adventurers must be acutely aware of flying "too close to the sun" because the law regarding commercial websites is particularly fractious with few courts completely agreeing on what constitutes sufficient commercial activity so as to justify the assertion of personal jurisdiction. Because a finding of personal jurisdiction so often resolves what law a court will apply, the unwary traveler faces both jurisdiction under a foreign court and judgment under that court's laws.

This Article will briefly review the evolution of jurisdictional analysis via Internet contacts and then analyze the two distinct tests that have evolved to evaluate Internet-based forum contacts with particular focus given to an area increasingly taking center stage in Internet jurisprudence—trademark infringement.³ Finally, this Article will look at established conflict-of-laws approaches and examine a basic flaw in those approaches given the transnational disputes now coming before courts.

II. The Internet

The Internet is a conglomeration of networked computers spanning almost 150 countries and every continent. The Internet was an outgrowth of a military network, ARPANET, begun in the late 1960s to enable defense contractors, the military, and institutions performing defense-related research to communicate over redundant channels. Thus, the Internet has evolved into '"a unique and wholly new medium of worldwide human communication.'"⁴ Accessed by computers that range in power from primitive, monochromatic home computers to advanced super computers acting as host computers, the Internet connects people from every walk of life.⁵ Participants in this "cyber world" typically access the Internet through affiliation with either a commercial host, a business, or a university. America Online, Inc., a commercial host, reports more than 25 million subscribers,⁶ and it is estimated that the overall number of Internet users exceeds 200 million.⁷

A variety of informational and commercial communication is available via the Internet.⁸ Individuals exist on the Internet through screen names that are, essentially, complete cyber-identities. No authoritative information about the addressee is generally available, and the party may well "use an e-mail 'alias' or anonymous remailer."⁹ This anonymity encourages mischief: "[T]he caution ordinarily exercised in face-to-face real space tends to recede in the world of anonymity and solitude that one finds in front of computer terminals."¹⁰ Although e-mail addresses are typically characterized as anonymous with no geographical information, this author previously has suggested that even the electronic address provides some geographical information in much the same fashion a nondescript box at a United States Post Office still identifies the town or region to which the mail is directed.¹¹ Though the user may remain anonymous, his host server cannot remain unknown, and parties responding to e-mail know, or at least could know, the geographic location of the main "post office"—AOL.com is located in Virginia and Earthlink.com in California and Atlanta. The server becomes the "cyber-domicile"¹² of the Internet user. Adjudication under this proposition could well lead to an admiralty-type issue, flags (or in this case servers) of convenience picked because of the favorable laws of the forum of the server.¹³ This result is not unheard of in the United States; one need look no further than Delaware and Florida, which are frequently picked as states of incorporation because of their favorable laws.

Methods of communication via the Internet include the above-discussed e-mail, one-on-one real time communication through chat rooms, distributed message databases such as listservs,¹⁴ and website publication. Most information from websites is transmitted "without human intervention" via "packet switching" protocol.¹⁵ A user basically accesses files maintained in a remote host server. Once requested, these files are broken into packets that are individually transmitted to the user's computer through either the same pathway of computers or through many different connections depending on the level of "traffic" on the Internet. Once downloaded, these packets are reassembled into recognizable form.¹⁶

Of the utmost importance in any Internet analysis is the recognition that a web page¹⁷ does not lurk in cyberspace waiting to pounce on an unsuspecting user. Rather, the user must type the document's address into her computer to retrieve it. Websites with infringing material are not broadcast into a user's computer unbidden. Likewise, websites, unlike national publications to which the Internet is so often compared, are not already distributed to the forum. They do not exist in the forum, absent the site's server or secondary server being located within the forum, until they are dragged there by the user. The user generally must seek them out and must deliberately request that they be downloaded to her computer.¹⁸ This affirmative act singularly distinguishes the Internet from all case law relating to personal jurisdiction via publication in traditional print media, and close judicial scrutiny of Internet contacts is necessary to avoid offending Due Process:

While the Internet allows businesses to engage in international communication and commerce, those businesses ... remain "entitled to the protection of the Due Process Clause, which mandates that potential defendants be able 'to structure their primary conduct with some minimum assurance as to where the conduct will and will not render them liable.'"¹⁹ @@@

Similar to the above-described web/print publication distinction overlooked in traditional jurisdictional analysis is the use of open listservs or systems that require no human intervention to accept the email address of a registrant. Unlike closed listservs, which more closely resemble traditional mailing lists in which a human moderator determines which addresses are accepted, open systems register the incoming e-mail address automatically.²⁰ This automatic, nondiscriminatory contact is simply not a valid basis for the proper assertion of personal jurisdiction: "'[P]ersonal jurisdiction surely cannot be based solely on the ability of [users] to access the defendants' websites, for this does not by itself show any persistent course of conduct by the defendants in the [forum].'"²¹ Careful judicial screening of Internet contacts is required to prevent our computers from subjecting us to the jurisdiction of a court in a forum with which only our computer has had a relationship.²² Some courts have glossed over this distinction.²³ Other courts, at least, are mindful of the admonition: "We do not believe that the advent of advanced technology, say, as with the Internet, should vitiate long-held and inviolate principles of federal court jurisdiction."²⁴

III. Personal Jurisdiction and the Internet

Whether general or specific, the assertion of personal jurisdiction by a court is based on. deliberate conduct by the foreign defendant over whom the court is attempting to exercise jurisdiction. For general personal jurisdiction to exist, the defendant's contacts with the forum must be continuous and "so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities."²⁵ Specific jurisdiction, in contrast, is claim-specific, depending upon whether the foreign defendant has purposefully availed himself of conducting beneficial activities within a forum so that it is not unreasonable for the defendant to expect to be amenable to suit arising out of those specific contacts.²⁶

Though long fractured over what constitutes "purposeful avail-ment,"²⁷ courts appear to be in agreement that mere negligence, even recklessness, as to forum activities is not enough.²⁸ Foreign defendants must take some affirmative step to avail themselves purposefully of the benefits and protections of the forum's laws.²⁹ In early Internet cases, courts confused the availability of websites with presence in the forum and readily found jurisdiction. In Inset Systems, Inc. v. Instruction Set, Inc.,³⁰ the court compared a website to catalogs distributed in the forum and found that defendant '"demonstrated its readiness to initiate telephone solicitation of Connecticut customers.'"³¹ Later courts refined this analysis and developed two distinct tests—the "sliding scale" test and the "effects test"—to discern "purposeful availment."

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