State cyberspace jurisdiction and personal cyberspace jurisdiction

International Journal of Law and Information Technology

Volumn 15, Issue 1, 2007, Pages 1-37

  Zekos, Georgios I ^a  

^a NONE

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EID: 33847386207     PISSN: 09670769     EISSN: 14643693     Source Type: Journal    
DOI: 10.1093/ijlit/eai029     Document Type: Article

References (335)

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2. Gutnick (2002) 194 ALR 433.
3. Lawrence Lessig, 'The Law of the Horse: What Cyberlaw Might Teach' (1999) 113 Harvard Law Review 501.
4. David Johnson and David Post, 'Law and Borders - The Rise of Law in Cyberspace' (1996) 48 Stanford Law Review 1367. The bases of jurisdiction pursuant to international law are territorial sovereignty (territorial principle), nationality (nationality principle), protection of nationals (passive nationality principle), protection of the state from outside events that may have an effect within the jurisdiction (protective principle) and universality of the crime (the universal principle)
5. Green Paper, entiltled 'A Proposal to Improve Technical Management of Internet Names and Addresses' can be found at http://www.ntia.doc.gov.ntiahome/domainname/dnsdrft.htm.
6. Voyeur Dorm v. City of Tampa, 265 F.3d 1232 (11th Cir. 2001) (holding that a live sex show broadcast over the Internet from a house in Tampa did not violate a local zoning ordinance prohibiting adult entertainment, because the entertainment was not physically provided at that location, but sent to remote users).
7. Zekos G I, 'Internet or Electronic Technology: A Threat to State Sovereignty', 1999 (3) The Journal of Information, Law and Technology (JILT).
8. Lawrence Lessig, The Path of Cyberlaw, 104 Yale L.J. 1743, 1745-46.
9. Jonathan Zittrain, The Rise and Fall of Sysopdom, 10 Harv. J.L. & Tech. 495, 497.
10. William S. Byassee, Jurisdiction of Cyberspace: Applying Real World Precedent to the Virtual Community, 30 Wake Forest L. Rev. 197, 207-08 (1995)
11. (discussing the federal obscenity test of local "contemporary community standards" articulated in Miller v. California, 413 U.S. 15 (1973)).
12. G Zekos "Legal Problems in Cyberspace" 2002 Managerial Law 45, Number 5.
13. David R. Johnson, Traveling in Cyberspace, Legal Times, Apr. 3, 1995, at 26.
14. Lawrence Lessig, The Zones of Cyberspace, 48 Stan. L. Rev. 1403, 1408.
15. Anne Wells Branscomb, Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in Cyberspaces, 104 Yale L.J. 1639, 1640 (1995) (stating that experimental user groups called virtual communities "can be said to occupy separate and diverse cyberspaces").
16. Philip Giordano, Invoking Law as a Basis for Identity in Cyberspace, 1998 Stan. Tech. L. Rev.1.
17. Jane C. Ginsburg, Global Use/Territorial Rights: Private International Law questions of the Global Information Infrastructure, J. COPY. SOC. 318, 319-320.
18. "Digital Equipment Corp. v. Altavista Technology, Inc., 960 F. Supp. 456 (D. Mass. 1997).
19. "Deirdre M. Curtin, Postnational Democracy: The European Union in Search ofa Political Philosophy 4 (1997) ("Just think of how global computer-based communications cut across territorial borders, creating a new realm of human activity and undermining the feasability - and legitimacy - of applying laws based on geographic boundaries to this new sphere.").
20. Arjun Appadurai, Disjuncture and Difference in the Global Cultural Economy, in Modernity at Large: Cultural Dimensions of Globalization 27, 27-29 (1996) ("Today's world involves interactions of a new order and intensity... With the advent of the steamship, the automobile, the airplane, the camera, the computer and the telephone, we have entered into an altogether new condition of neighborliness, even with those most distant from ourselves.")
21. Michael Edwards, Future Positive: International Co-operation in the 21st Century 5-6 (1999) ("Globalisation challenges the authority of nation states and international institutions to influence events, while the scale of private flows of capital, technology, information and ideas makes official transfers look increasingly marginal.").
22. David R. Johnson & David Post, Law and Borders - The Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367 (1996).
23. David G. Post, Governing Cyberspace, 43 Wayne L. Rev. 155 (1996).
24. David G. Post, Anarchy, State, and the Internet: An Essay on Law-Making in Cyberspace, 1995 J. ONLINE L. 3.
25. Restatement (Third) of Foreign Relations Law of the United States § 201 (1987) ("Under international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government...")
26. and Malcolm N. Shaw, International Law 277-314 (3d ed. 1991) ("International law is based on the concept of the state [which] in its turn lies upon the foundation of sovereignty [which itself] is founded upon the fact of territory. Without territory, a legal person cannot be a state.").
27. Henry Perritt, The Internet as a Threat to Sovereignty? Thoughts on the Internet's Role in Strengthening National and Global Governance, 5 Ind. J. Global Legal Stud. 423 (1998) (arguing that the "Internet as a threat to sovereignty" thesis only threatens a "Realist" theory of international relations, not the "liberal tradition of international relations" that already accounts for the interaction of non-state actors across borders),
28. Anne-Marie Slaughter, Liberal International Relations Theory and International Economic Law, 10 am. U. J. Int'l L. & Pol'y 717 (1995) (distinguishing the liberal theory of international relations from realism, which assumes "that the primary actors are states, and define states as monolithic units identifiable only by the functional characteristics that constitute them as states").
29. James Boyle, Foucault in Cyberspace: Surveillance, Sovereignty, and Harchwired Censors, 66 U. CINC. L. REV. 177 (1997).
30. Joel R. Reidenberg, Governing Networks and Rule-Making in Cyberspace, 45 EMORY L. J. 911 (1996) (arguing that the transnational nature of the Internet requires governance by a collection of state, business, technical, and citizen forces)
31. John T. Delacourt, Note, The International Impact of Internet Regulation, 38 HARV. INT'L. L. J. 207 (1997) (contending that national regulation of the Internet is inappropriate and that a consensual regime of user self-regulation should be adopted).
32. Patricia Fusco, Top U.S. ISPs by Subscriber Q2 2001 - Market Insights (Aug. 17, 2001), available at http://www.isp-planet.com/ research.rankings/_usa_history_q22001.html
33. Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 STAN. L. REV. 1 (2001) (arguing that copyright doctrines must be subjected to independent First Amendment scrutiny).
34. Oppenheim's International Law 1992 R Jennings Chapter 5 at 563.
35. The Schooner Exch. v. M'Faddon, 11 U.S. (7 Cranch) 116, 136 (1812).
36. I Brownlie 'Principles of Public International Law' 1990 Oxford pp 100-200.
37. L Kramer 'Extraterritorial Application of American Law' 1991 Sup. Ct. Rev 179.
38. Strassheim v Daily 221 US 280.
39. Paul R. Viotti & Mark V. Kauppi, International Relations Theory: Realism, Pluralism, Globalism 35 (2d ed. 1993).
40. Stephan Wilske & Teresa Schiller, International Jurisdiction in Cyberspace: Which States May Regulate the Internet?, 50 Fed. Comm. L.J. 117, 129-42 (1997).
41. Restatement (Third) of Foreign Relations Law §402(1)(a) (1987).
42. The effects principle grants a state jurisdiction to regulate "conduct outside its territory that has or is intended to have substantial effect within its territory." Id. §402(1)(b).
43. Jack L. Goldsmith, The Internet and the Abiding Significance of Territorial Sovereignty, 5 Ind. J. of Global Legal Stud. 475, 476 (1998).
44. James Boyle, Foucault in Cyberspace: Surveillance, Sovereignty, and Hardwired Censors, 66 U. Cin. L. Rev. 177, 178-83 (1997) (summarizing the argument that "the technology of the medium, the geographical distribution of its users, and the nature of its content all make the Internet specially resistant to state regulation".
45. Joel R. Reidenberg, Governing Networks and Rule-Making in Cyberspace, 45 Emory L.J. 911, 917-19 (1996) (asserting that the Internet's infrastructure creates "visible borders" that replace national borders in regulating online interactions).
46. Henry H. Perritt, Jr., Cyberspace Self-Government: Town Hall Democracy or Rediscovered Royalism?, 12 Berkeley Tech. L.J. 413, 414 (1997) ("[Cyberspace] may be distinct enough to have its own law and legal institutions - a system of 'cybergovernment.'").
47. Timothy S. Wu, Note, Cyberspace Sovereignty? - The Internet and the International System, 10 Harv. J.L. & Tech. 647, 654-55 (1997) (describing examples of Internet regulation in China and Singapore that cast doubt on "the arguments for cyberspace sovereignty inasmuch as they seem to make sense only in particular contexts").
48. New York v. United States, 505 U.S. 144, 177 (1992).
49. Roxanne Lynn Doty, Sovereignty and the Nation: Constructing the Boundaries of National Identity, in State Sovereignty as Social Construct 121, 122 (Thomas J. Biersteker & Cynthia Weber eds., 1996) ("Today no state possesses legitimacy which does not also claim to represent the will of the nation."
50. Peter J. Spiro, New Global Communities: Nongovernmental Organizations in International Decision-Making Institutions, WASH. Q., Winter 1995, at 45, 46 ("It is almost as if the world has arrived at a sort of neomedievalism in which the institutions and sources of authority are multifarious.").
51. Rosemary J. Coombe, The Cultural Life of Things: Anthropological Approaches to Law and Society in Conditions of Globalization, 10 AM. U. J. Int'l L. & Pol'y 791, 831 (1995) (noting that because of globalization, cultures can no longer be considered bounded by territorial terms, but instead exist across borders)
52. Alexander B. Murphy, The Sovereign State System as Political-Territorial Ideal: Historical and Contemporary Considerations, in State Sovereignty as Social Construct, at 81, 82-84, 107 (asserting that globalization challenges the sovereign state's conceptual integrity by dispersing authority to a multitude of "significant functional spaces").
53. Steven R. Salbu, Who Should Govern the Internet?: Monitoring and Supporting a New Frontier, 11 HARV. J.L. & TECH. 429, 457-58 (1998) ("Interactive computer technology signals a paradigm shift away from geographic conceptualizations of community, in favor of nongeographical communities."
54. Thomas M. Franck, Clan and Superclan: Loyalty, Identity, and Community in Law and Practice, 90 AM. J. INT'L L. 359, 376 (1996) ("In many areas of endeavor - commerce, defense, environmental protection, health, entertainment, education - human needs and wants cannot...be satisfied by, or in, the state alone.").
55. Todd H. Flaming, The Rules of Cyberspace: Informal Law in a New Jurisdiction, 85 ILL. B.J. 174, 179 (1997) (asserting that territorial governments should recognize cyberspace as an autonomous space that orders itself according to the preferences of the Internet community)
56. Aaron Mefford, Note, Lex Informatica: Foundations of Law on the Internet, 5 IND. J. OF GLOBAL LEGAL STUD. 211, 236 (1997) (asserting that self-regulation is more legitimate than territorial law because users create "Net law")
57. Margaret Chon, Radical Plural Democracy and the Internet, 33 CAL. W.L. REV. 143, 147 (1997).
58. Restatement (Third) of Foreign Relations Law of the United States § 201 (1987) ("Under international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government....")
59. id. §402 (a state has "jurisdiction to prescribe law with respect to (1)(a) conduct that, wholly or in substantial part, takes place within its territory; (b) the status of persons, or interests in things, present within its territory; (c) conduct outside its territory that has or is intended to have substantial effect within its territory;...")
60. see also Lea Brilmayer, Consent, Contract, and Territory, 74 Minn. L. Rev. 1, 11-12 (noting the significance of state authority derived from sovereignty over physical territory in the context of social contract theory).
61. Alfred-Maurice de Zayas, Peace of Westphalia (1648), in 7 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 536-39 (1984).
62. David G. Post, Against "Against Cyberanarchy", Vol. 7 Berkeley Technology Law Journal 1 at 2.
63. Jack L. Goldsmith, The Internet and the Abiding Significance of Territorial Sovereignty, 5 Ind. J. Global Legal Stud. 475, 479 (1998) ("Internet activities are functionally identical to these non-Internet activities. People in one jurisdiction do something - upload pornography, facilitate gambling, offer a fraudulent security, send spam, etc. - that is costly to stop at another jurisdiction's border and that produces effects within that jurisdiction deemed illegal there.")
64. Allan R. Stein, The Unexceptional Problem of Jurisdiction in Cyberspace, 32 INT'L LAW 1167, 1180 (1998) ("The Internet is a medium. It connects people in different places. The injuries inflicted over the Internet are inflicted by people on people. In this sense, the Internet is no different from the myriad of ways that people from one place injure people in other places....").
65. Restatement (Third) of Foreign Relations §402(1) (c) (1987) (concluding that unless "unreasonable," a state has jurisdiction to prescribe law with respect to "conduct outside its territory that has or is intended to have substantial effect within its territory").
66. Neil Weinstock Netanel, Cyberspace Self-Governance: A Skeptical View from Liberal Democratic Theory, 88 Calif. L. Rev. 395, 491 (2000) (criticizing as "fundamentally incorrect as a matter of positive international law" the notion that a sovereign "cannot properly legislate or otherwise prescribe law" that applies to extraterritorial conduct).
67. Religious Tech. Ctr. v. Netcom On-line Servs., Inc., 907 F. Supp. 1361 (N.D. Cal. 1995).
68. American Library Assoc. v. Pataki,969 F.Supp. 160,161 (1997) (comparing the Internet to highways and railways).
69. Intel Corp. v. Hamidi,30 Cal.4th 1342,1361 (2003) (Writing for the majority of the California Supreme Court, Justice Werdegar warns us against an over reliance on metaphor and analogy. He notes that "'cyberspace' itself has come to be known by the oxymoronic phrase 'virtual reality,' which would suggest that any real property 'located' in 'cyberspace' must be 'virtually real' property. Metaphor is a two-edged sword.").
70. Ethan Preston, Finding Fences in Cyberspace: Privacy and Open Access on the Internet, 6 J.TECH.L. & POL'Y 3 (2001) (arguing that "computer security law would be more coherent and protect equity more predictably if it treated the Internet as if it were physical place - cyberspace")
71. Harold Smith Reeves, Property in Cyberspace, 63 U. CHI.L.REV.761 (1996) (discussing property-based models applicable to cyberspace).
72. Pruneyard Shopping Center v.Robins, 447 U.S.74,82 (1980).
73. PruneYard Shopping Center v.Robins, 447 U.S.74 (1980)
74. New Jersey Coalition Against War in the Middle East v.J.M.B.Realty Corp.,650 A.2d 757 (N.J.1994)
75. Bock v. Westminster Mall Co.,819 P.2d 55 (Colo. 1991).
76. Jennifer A. Klear, Comparison of the Federal Courts' and the New Jersey Supreme Court's Treatments of Free Speech on Private Property: Where Won't We Have the Freedom to Speak Next?33 RUTGERS L.J.589 (2002) (comparing the Federal Court's and the New Jersey Supreme Court's holdings related to free speech on private property).
77. Prune Yard Shopping Center v.Robins,447 U.S.74 (1980)
78. New Jersey Coalition Against War in the Middle East v. J.M.B.Realty Corp.,650 A.2d 757 (N.J.1994)
79. Bock v. Westminster Mall Co.,819 P.2d 55 (Colo.1991).
80. Albertson's Inc. v. Young,131 Cal.Rptr.2d 721 (2003).
81. Ticker Master Corp. v. Tickets. com,Inc.,2000 WL 1887522 (C.D.Cal.Aug.10,2000), aff'd 2 Fed.Appx.741 (9th Cir.2001).
82. eBay v.Bidder's Edge,Inc.,100 F.Supp.2d 1058 (N.D.Cal. 2000).
83. Register. com,Inc. v. Verio,Inc., 126 F.Supp.2d 238 (S.D.N.Y.2000).
84. Oyster Software,Inc. v. Forms Processing,Inc.,No.C-00-0724 JCS,2001 WL 1736382 (N.D.Cal.Dec.6,2001).
85. Intel Corp. v. Hamidi,114 Cal.Rptr.2d 244 (Cal.App.3d 2001).
86. Intel Corp.v.Hamidi,71 P.3d 296 (Cal-2003).
87. Intel v.Hamidi,114 Cal.Rptr.2d 244,253-55 (reviewing the case law and the uncertainty of the state action doctrine)
88. Register. com,Inc.v.Verio,Inc., 126 F.Supp.2d 238, 249-50 (S.D.N.Y.2000) (holding that trespass to chattels had occurred where defendant's actions reduced capacity, thereby slowing response times and reducing system performance).
89. AOL v.IMS,24 F.Supp.2d 548,549 (E.D.Va.1998).
90. AOL v.LCGM,Inc., 46 F.Suppl.2d 444,448 (E.D.Va. 1998
91. AOL v.GreatDeals.Net,49 F.Supp.2d 851 (E.D.Va.1999).
92. Jeffrey M.Rosenfeld, Spiders and Crawlers and Bots, Oh My: The Economic Efficiency and Public Policy of Online Contracts that Restrict Data Collection, 2002 STANFORD TECH.L.REV.3 (2002), available at http://stlr.stanford.edu/STLR/Articles/02-STLR_3 (arguing for enforceability of contract restrictions on robot searching, and a fair use technical standard).
93. Noah v.AOL Time Warner,Inc.,261 F.Supp.2d 253 (E.D.Va.2003).
94. Albertson's Inc.v.Young,131 Cal.Rptr-2d 721 (2003).
95. Intel Corp.v.Hamidi,71 P.3d 296,311-12 (2003) (acknowledging that speech is protected from government and not private restrictions, but finding that state action is present in a trespass case when an injunction against speech on private property).
96. Noah v.AOL Time Warner,Inc.,261 F.Supp.2d 532,537,543(E.D.Va.2003) (discussing whether the Civil Rights Act of 1964 or the ADA can be applied in cyberspace).
97. Access Now, Inc. v. Southwest Airlines,Co.,227 F.Supp.2d 1312,1321 (S.D.Fla.2002) (stating that "it is the role of Congress, and not this Court, to specifically expand the ADA's definition of 'public accommodation' beyond physical, concrete places of public accommodation, to include 'virtual' places of public accommodation").
98. EF Cultural TravelBV v.Zefer Corp.,318 F.3d 58,63 (1st Cir.2003) ("EF did not purport to exclude competitors from looking at its website and any such limitation would raise serious public policy concerns.")
99. Noah v.AOL Time Warner,Inc.,261 F.Supp.2d 532,534 (E.D.Va-2003).
100. Access Now, Inc. v. Southwest Airlines,Co.,227 F.Supp.2d 1312 (S.D.Fla-2002).
101. Carparts Distribution Ctr., Inc. v. Automotive Wolesaler's Ass'n,37 F.3d 12 (1st Cir.1994).
102. Reno v.ACLU,521 U.S.844,863 (1997)
103. (quoting ACLU v.Reno,929 F.Supp.824,844(E.D.Pa 1996)).
104. United States v. Am. Library Ass 'n,123 S.Ct.2297,2305 (2003) (holding that a public library does not create a public forum on its computers when it provides Internet access to library patrons.
105. Putnam Pit,Inc.v.City of Cookeville,221 F-3d 834 (6th Cir.2000) (holding that a local government website did not constitute a traditional or designated public forum, and that the city did not violate the First Amendment when it refused to include on its site a link to a small, tabloid web publication that reported on alleged city corruption, despite the fact that the cite did link to other profit and non-profit entities).
106. Noah v.AOL Time Warner,Inc.,261 F.Supp.2d 532,534 (E.D.Va-2003).
107. Access Now, Inc. v. Southwest Airlines, Co.,227 F.Supp.2d. 1312 (S.D.Fla.2002).
108. Carparts Distribution Ctr., Inc. v. Automotive Wolesaler's Ass 'n,37 F.3d 12 (1st Cir.1994).
109. Access Now, Inc. v. Southwest Airlines,Co.,227 F.Supp.2d 1312 (S.D.Fla.2002).
110. Doe v.Mutual of Omaha Ins.Co.,179 F.3d.557 (7th Cir. 1999).
111. Rendon v.Valleycrest Prods.Ltd.,294 F.3d 1279 (11th Cir.2002).
112. Noah v.AOL Time Warner,Inc.,261 F.Supp.2d 532,540-45 (E.D.Va-2003).
113. Daniel v.Paul,395 U.S.298 (1969).
114. Courts applying the doctrine of trespass to chattels to the Internet, see, e.g., eBay, Inc. v. Bidder's Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000)
115. Register.com, Inc. v. Verio, Inc., 126 F. Supp. 2d 238 (S.D.N.Y. 2000)
116. America Online v. National Health Care Discount, Inc., 174 F. Supp. 2d 890 (N.D. Iowa 2001)
117. Oyster Software, Inc. v. Forms Processing, 2001 WL 1736382 (N.D. Cal. Dec. 6, 2001)
118. GTE New Media Servs. v. BellSouth Corp., 199 F.3d 1343 (D.C. Cir. 2000)
119. Jessica Litman, Breakfast with Batman: The Public Interest in the Advertising Age, 108 Yale L.J. 1717, 1725 (1999) ("There has been inexorable pressure to recognize as an axiom the principle that if something appears to have substantial value to someone, the law must and should protect it as property.").
120. Bay, Inc. v. Bidder's Edge, 100 F. Supp. 2d 1058 (N.D. Cal. 2000).
121. Register.com, Inc. v. Verio, Inc., 126 F. Supp. 2d 238 (S.D.N.Y. 2000)
122. Oyster Software, Inc. v. Forms Processing, 2001 WL 1736382 (N.D. Cal. Dec. 6, 2001)
123. and Intel Corp. v. Hamidi, 114 Cal. Rptr. 2d 244 (Ct. App. 2001).
124. Michael Geist, E-borders Loom, for Better or Worse, TORONTO GLOBE & MAIL, http://www.globetechn...neutral&slug-TWGEISY&date-20010628
125. Vacco v. World Interactive Gaming Corp., 714 N.Y. S.2d 844 (1999) (prosecution of non-resident corporation and subsidiaries for offering Internet gambling to residents of New York)
126. Humphrey v. Granite Gates Resorts, Inc., 568 N.W. 2d 715 (1997) (prosecution of non-resident corporation and its principal for deceptive trade practices, false advertising, and consumer fraud in connection with an Internet gambling site).
127. Tan-Tarn How, Foreign Websites that Refuse to Register "Can be Blocked, "THE STRAITS TIMES (SINGAPORE) (Sep.1, 2001), (reporting that Singapore government will block access to foreign websites that do not register in Singapore as political websites and abide by new laws that limit political campaigning by websites during an election.).
128. "Henry H. Perritt, Jr., The Internet is Changing the Public International Legal System, 88 KY. L.J. 885 (1999-2000) ("The Internet's low economic barriers to entry provide a voice to political actors who otherwise would be denied effective access to the public arena. Because the Internet gives them access, and is inherently global, these actors can find like-minded people in other states, thus enabling them to build political movements across national lines.").
129. Jack Goldsmith, The Internet and the Abiding Significance of Territorial Sovereignty, 5 IND. J. OF GLOBAL LEGAL STUD. 475, 475 (1998)
130. Ned Stafford, Trench ISPs Fight to Avoid Blocking Nazi, Racist Content, NEWSBYTES, (Sep. 4, 2001), available at http://www.newsbytes.com/cgi-bin/ u...lient.id-newsbytes&story.id=169727.
131. U.S.C. 2§30(c) (1) (Supp. 1999) ("No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.")
132. see also Zeran v. America Online, 129 F.3d 327, 330 (4th Cit. 1997)(concluding that Congress enacted this provision because of "the threat that tort based lawsuits pose to freedom of speech in the new and burgeoning Internet medium").
133. United States v Montoya de Hernandez 473 US 531, The Chinese Channel Limited. http://www.chinesechannel.co.uk Framework for Global Electronic Commerce. http://www.ecommerce.gov/
134. Management of Internet http://www.ntia.doc.gov/
135. "Courtney Macavinta, ICANN to Control Domain Name Server, CNET NEWS.COM, June 30, 1999, at http://news.com.com/2100-1023-227889.html.
136. "Peter H. Lewis, Limiting a Medium Without Boundaries, N.Y. TIMES,Jan. 15, 1996, at D1.
137. John Pomfret, Chinese Sentenced in Internet Case, WASH. POST, Jan. 21, 1999, at A19.
138. American Libraries Ass'n v. Pataki, 969 F. Supp. 160, 177 (S.D.N.Y. 1997) (holding that a New York law that criminalized the dissemination of obscene materials to minors unconstitutionally encroached "Upon the sovereignty of New York's sister states [and was] per se violative of the Commerce Clause").
139. "ICRAVETV.com http://www.icravetv.com/adinfo/adinfo_frameset.html
140. CNET News.com http://news.cnet.com/category/0-1004-200-1559907.html
141. Stephan Wilske and Teresa Schiller, International Jurisdiction In Cyberspace: Which States May Regulate The Internet?, 50 Fed. Comm. L.J. 117, 122-3 (1997) ("When CompuServe, Inc. blocked access by its subscribers in the United States and around the world to two hundred discussion groups after a federal prosecutor in Germany had indicated that they might violate German pornography laws, users realized that 'cyberspace doesn't belong to a single country,' but to a whole range of countries with diverse legal concepts.")
142. Henry H. Perrin, Jr., Will the Judgment-Proof Own Cyberspace?, 32 Int'l Law. 1121, 1123 (1998) ("The real problem is turning a judgment supported by jurisdiction into meaningful economic relief. The problem is not the adaptability of International Shoe-obtaining jurisdiction in a theoretical sense. The problem is obtaining meaningful relief.").
143. "National Football League v. TVRadioNow Corp., 53 U.S.P.Q.2d 1831, 1834-35 (W.D.Pa. 2000).
144. Ed Hore, Jump TV Wants to Put TV Signals on the Internet, THE LAWYERS WEEKLY, Jan. 12, 2001
145. Jessica Litman, Privacy and E-Commerce, 7 B.U.J. OF SCI. & TECH. L. 223, 225 (2001) (arguing that cases such as Yahoo! and iCraveTV, which give ISPs some responsibility for controlling access to people in different geographic areas, will exacerbate privacy concerns because, if an ISP has to know where you are, then there will be greater incentives to link web profiles with physical locations).
146. Jonathan D. Glater, Hemming in the World Wide Web, N.Y. TIMES (Jan. 7, 2001) at sec. 4, p. 5 ("A lot of times people are looking for information on the Internet that they wouldn't want people to know they're looking for.")
147. US v Smith, 680 F 2d 255 (1st Cir. Mass 1982).
148. McConnell Dowell Constructors Ltd v Lloyd's Syndicate 396 [1988] 2 NZLR 257 (CA).
149. Alan Hunt, Foucault's Expulsion of Law: Toward a Retrieval, 17 L. & SOC. INQ. 1.
150. Robert C. Denicola, Mostly Dead? Copyright Law in the New Millennium, 47 J. COPYRIGHT SOC'Y USA 193, 204-07 (2000) (arguing that balance between incentive for copyright holders and public access has shifted towards "a free market in property rights rooted in the natural entitlement of creators")
151. L. Ray Patterson, Understanding the Copyright Clause, 47 J. COPYRIGHT SOC'Y USA 365, 387-89 (2000) (arguing that Congress inappropriately granted a "natural law monopoly" in the Act "comprised of rights for the creator to the exclusion of any duties")
152. Pamela Samuelson, Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to be Revised, 14 BERKELEY TECH. L.J. 519, 566 (1999) (arguing that certain provisions of the Act are overbroad and warning of its "potential for substantial unintended detrimental consequences")
153. Jane C. Ginsburg, Copyright and Control Over New Technologies of Dissemination, 101 COLUM. L. REV. 1613, 1616-17 (2001) (arguing that proper "resolution of tensions between the exercise of control under copyright on the one hand and the availability of new technology on the other... notwithstanding current critiques, supports a continued role for control in a new technological environment" and suggesting that the logic underlying the act "is consistent with earlier approaches to copyright/technology conflicts").
154. Vacco v. World Interactive Gaming Corp., 714 N.Y.S.2d 844 (1999) (enforcing state and federal laws to ban foreign corporation, its Antiguan subsidiary, and their principals, officers, and directors from operating or offering gambling over the Internet)
155. Humphrey v. Granite Gates Resorts, Inc., 568 N.W. 2d 715 (1997) (asserting personal jurisdiction over non-resident corporation and its principal for deceptive trade practices, false advertising, and consumer fraud in connection with an Internet gambling site)
156. Interactive Gambling Act, 2001, (Aust 1.) avaiable at http://www.noie.gov.au/projects/consumer/gambling/banact.pdf.
157. Nev. Rev. Star. Ann. §176A. 413 (2001) (restricting ownership and use of online chatrooms by people previously convicted of cyber-stalking)
158. 47 U.S.C. §254 (1) (1) (A) ((ii) (2001) (requiring schools and libraries to adopt and implement policies to insure the safety and security of minors when using chat rooms).
159. Ind. Code Ann. §26-2-8-102 (2001) (applying consumer regulations to online auction sites)
160. N. C. Gen. Stat. §66-312 (2000) (same)
161. TGI Paris, Ordonnance de référé du 20 nov. 2000, available at http://www.juriscom.net/txt/jurisfr/cti/tgiparis200001120.htm (enjoining Yahoo.com from permitting French users access to Nazi memorabilia via Yahoo!'s auction sites).
162. Uniform Computer Information Transactions Act 2§09 (1999), available at http://www.law.upenn.edu/bll/ulc/ucita/cita10st.doc (proposed uniform state law to govern online contracts)
163. Electronic Transactions Act, 1999 (Austl.) available at http://www.law.gov.au/publications/ecommerce/ (creating a regulatory regime intended to support and encourage business and consumer confidence in the use of electronic commerce).
164. Electronic Communications Privacy Act, 18 U.S.C. §2701 (Supp. III 1998) (prohibiting unauthorized access to a "facility through which an electronic communication service is provided")
165. Data Protection Act, 1998, c. 29 (Eng.) available at http://www.hmso.gov.uk/acts/acts1998/19980029.htm (requiring technical and organizational measures against unauthorized or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data).
166. Sexual Exploitation and other Abuse of Children Act, 18 U.S.C. § 2252(A) (1998 Supp. III) (prohibiting the receipt or distribution of sexually explicit photos of minors by any means including computer)
167. Reno v. ACLU, 117 S.Ct. 2329 (1997)
168. (striking down, on First Amendment grounds, provisions of the Communications Decency Act, 47 U.S.C. §223 (1994, Supp. II), that criminalized certain content sent via online communication)
169. ACLU v. Reno, 217 F.3d 162 (3d Cir., 2000)
170. (striking down, on First Amendment grounds, the Child Online Protection Act, 47 U.S.C. §231 (1998 Supp. III), which also criminalized certain content sent via online communication),
171. cert. granted sub nom. Ashcroft v. American Civil Liberties Union, 121 S.Ct. 1997 (2001)
172. Regina v. Pecciarich, [1995] O.R.3d 748 (holding that the distribution of child pornography by uploading photos to an electronic bulletin board was in violation of criminal statutes).
173. America Online, Inc. v. LCGM, Inc., 46 F. Supp.2d 444 (E.D. Va. 1998) (holding that defendants who harvested email addresses of AOL members using an extractor program and then used those addresses to send unauthorized bulk email advertising their pornographic web sites were in violation of the Act).
174. Computer Fraud and Abuse Act, 18 U.S.C. §1030 (1998 Supp. III) (applying federal law to newly discovered forms of computer abuse and providing civil remedies for certain types of computer crimes)
175. Regulation of Investigatory Powers Act, 2000, c. 23 (Eng.) (defining criminal penalties for interception of traffic on all postal and telecommunications networks and any action that may cause the content of a message to become known to people other than the sender or intended recipient).
176. 95 U.S. 714 (1877). at 722 ("[E]very State has the power to determine for itself the civil status and capacities of its inhabitants; to prescribe the subjects upon which they may contract, the forms and solemnities with which their contracts shall be executed, the rights and obligations arising from them, and the mode in which their validity shall be determined and their obligations enforced; and also the regulate the manner and conditions upon which property situated within such territory, both personal and real, may be acquired, enjoyed, and transferred.... [N]o State can exercise direct jurisdiction and authority over persons or property without its territory.").
177. Peter J. Spiro, Globalization, International Law, and the Academy, 32 N.Y.U.J. INT'L L. & POL. 567, 568 & n.2 (2000) (noting that the term "'postnational' has crept into other disciplines," but that international law scholars have been slow to pick up the term, having "only recently caught on to 'globalization.'").
178. Stephen G. Utz, Tax Harmonization And Coordination In Europe And America, 9 CONN. J. INT'L L. 767, 767 (1994).
179. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW 4§12 (1987).
180. OECD Progresses towards Achieving an International Consensus on the Tax Treatment of Ecommerce, OECD News Release (Feb. 12, 2001).
181. Andreas P. Reindl, Choosing Law in Cyberspace: Copyright Conflicts on Global Networks, 19 MICH. J. INT'L L. 799, 800-01 (1998).
182. United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 101 (1918) ("But where two parties independently are employing the same mark upon goods of the same class, but in separate markets wholly remote from the other, the question of prior appropriation is legally insignificant...."
183. Panavision Int'l v. Toeppen, 141 F.3d 1316, 1326 (9th Cir. 1998)
184. (quoting Panavision Int'l v. Toeppen, 945 F. Supp. 1296, 1304 (C.D. Cal. 1996)).
185. Congress first passed the Federal Trademark Dilution Act (Pub.L. No. 104-98, 109 Stat. 985 (codified at 15 U.S.C. § 1125, 1127) and then the Anticybersquatting Consumer Protection Act (ACPA Pub.L. No. 106-113 (1999)
186. see H.R.Rep. No. 106-479 (Nov. 18, 1999)), which provides an explicit Federal remedy to combat so-called "Cybersquatting."
187. Mecklermedia Corp. v. DC Congress GmbH, 1 All E.R. 148, 160 (Ch.1998) (reaching a different conclusion on ownership of a mark from the one reached in other countries).
188. Compare, e.g., Fleetboston Financial Corp. v. Fleetbostonfinancial.com, 138 F.Supp.2d 121, (D.Mass. Mar 27, 2001 (finding that in rem provisions of ACPA violate due process when domain name registration paper is subsequently transferred to a district other than the district where registrar is located)
189. Heathmount A.E. Corp. v. Technodome.Com, 106 F.Supp.2d 860, 865-66 (E.D.Va.2000) (finding that the registration of a domain name, without more, cannot be sufficient minimum contacts for the purposes of in personam jurisdiction)
190. America Online, Inc. v. Chih-Hsien Huang, 106 F.Supp.2d 848, 855-60 (E.D.Va.2000) (finding that filing an online domain name registration agreement with Network Solutions is not sufficient contact with Virginia to justify in personam jurisdiction).
191. Caesars World, Inc. v. Caesars- Palace.Com, 112 F.Supp.2d 502, 504 (E.D.Va. 2000). (finding sufficient contacts for purposes of in rem jurisdiction)
192. Lucent Technologies, Inc. v. Lucentsucks.com, 95 F.Supp.2d 528, 535 n. 5 (E.D.Va.2000) (Brinkema,J.) (finding that registration is sufficient minimum contact for in personam jurisdiction).
193. Caesars World, Inc. v. Caesars-Palace.Com, 112 F.Supp.2d 502, 504 (E.D.Va. 2000) ("under Shaffer, there must be minimum contacts to support personal jurisdiction only in those in rem proceedings where the underlying cause of action is unrelated to the property which is located in the forum state").
194. Michael Geist, Fair.com?: An Examination of the Allegations of Systemic Unfairness in the ICANN UDRP, available at http://aixl.uottawa.ca/-geist/ g.PDF
195. Steven Bonisteel, Law Expert Charges Bias in Domain-Dispute Arbitrations, NEWSBYTES (Aug. 20, 2001), available at http://www.newsbytes.com/news/01/169180.html
196. A. Michael Froomkin, Wrong Turn in Cyberspace, Using ICANN to Route Around the APA and the Constitution, 50 DUKE L.J. 17 (2000).
197. Michael A. Sussmann, The Critical Challenges from International High-Tech and Computer-Related Crime at the Millennium, 9 DUKE J COMP & INT'L L. 451, 455 (1999).
198. Declan McCullagh, Spam Oozes Past Border Patrol, WIRED.COM(Feb. 23, 2001), available at http://www.wired.com/news/print/ 0.1294.41860.00.html, (reporting that an increasing amount of unsolicited commercial e-mail is originating from overseas sites and flowing through non-U.S. servers).
199. Jonathan I. Edelstein, Note, Anonymity and International Law Enforcement in Cyberspace, 7 FORDHAM INTEL. PROP., MEDIA & ENTER. L. J. 231, 265-67 (1996) (discussing the possibility of countries using anonymous remailers and computer secrecy laws to create data havens for criminals).
200. United States v. Cabrales, 524 U.S. 1 (1998) (ruling that money laundering charge could only be prosecuted where the alleged acts of laundering took place, not in the district where the crimes generating the money allegedly occurred).
201. International Shoe Co. v. State of Washington, 326 U.S. 310, 316 (1945) (establishing test for determining whether an assertion of personal jurisdiction comports with the Due Process Clause of the U.S. Constitution based on whether the defendant had sufficient contact with the relevant state "such that jurisdiction is consistent with traditional notions of fair play and substantial justice").
202. Hanson v. Denckla, 357 U.S. 235, 253 (1958).
203. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
204. Burger King v. Rudzewicz, 471 U.S. 462, 476-77 (1985).
205. Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 119 (1987) (Brennan, J., concurring in part and concurring in the judgment).
206. In Asahi, four justices indicated that simply placing a product in the stream of commerce, without more, would not be sufficient to establish jurisdiction wherever that product happened to end up. Instead, these justices would require some sort of "additional conduct" by the defendant that would demonstrate that the defendant had the specific "intent or purpose" to serve the market in the state exercising jurisdiction. Id. at 112 (Opinion of O'Connor, J.). Four other justices (including Justice Brennan) disagreed, however, arguing that simply placing a product in the stream of commerce was sufficient.
207. See id. at 117 (Opinion of Brennan, J.). The ninth, Justice Stevens, found that, based on the facts of the case, jurisdiction was proper under either test and therefore declined to choose between them.
208. Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002) (noting that in addition to establishing personal jurisdiction based on a state long-arm statute, jurisdiction also must comply with due process principles).
209. Council Directive 2000/31, 2000 O.J. (L 178).
210. Rudder v. Microsoft Corp., 2 C.P.R. (4th) 474 (Ont. S.C.J. 1999) (holding that to find the forum selection clause unenforceable would undermine the integrity of any agreement entered into through the Web)
211. Kilgallen v. Network Solutions, 99 F. Supp. 2d 125 (D. Mass. 2000) (holding that forum selection clauses are enforceable unless proven unreasonable under the circumstances).
212. Williams v. America Online, Inc., 2001 WL 135825 (Mass. Super.2001) (refusing to enforce forum selection clause contained in America Online's Terms of Service agreement in part because "public policy suggests that Massachusetts consumers who individually have damages of only a few hundred dollars should not have to pursue AOL in Virginia.").
213. Siegelman v. Cunard White Star Ltd., 221 F.2d 189, (Frank, J., dissenting) (arguing that a choice-of-law provision in a contract of adhesion should not be honored).
214. Susan D. Rector, E-Commerce Update: Clickwrap Agreements: Are They Enforceable?, 13 CORP. COUNS. 1 (Mar. 1999) (noting that the complete terms of click stream contracts often are not known until after the consumer makes the purchase).
215. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980).
216. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-15 & n.9 (1984).
217. Hinsch v. Outrigger Hotels Haw., 153 F. Supp. 2d 209, 213-14 (E.D.N.Y.2001).
218. 232 F.3d 1369, 1375 (Fed. Cir. 2000).
219. Linda Sandstrom Simard, Hybrid Personal Jurisdiction: It's Not General Jurisdiction, or Specific Jurisdiction, But Is It Constitutional?, 48 CASE W. RES. L. REV. 559, 567 (1998) (Supreme Court's holdings provide little guidance on the requisite criteria for general jurisdiction).
220. "General jurisdiction" is the term used to describe the exercise of jurisdiction over a defendant for any cause of action based on activities unrelated to the plaintiff's claims. Arthur von Mehren & Donald Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 HARV. L. REV. 1121, 1136-37 (1966).
221. Patrick J. Borchers, The Problem with General Jurisdiction, 2001 U. CHI. LEGAL F. 119, 137.
222. Lea Brilmayer, How Contacts Count: Due Process Limitations on State Court Jurisdiction, 1980 SUP. CT. REV. 77, 87 (the appropriate test is whether the defendant is enough of a "political insider" to invoke the political processes of the state)
223. Sarah R. Cebik, "A Riddle Wrapped in a Mystery Inside an Enigma" General Personal Jurisdiction and Notions of Sovereignty, 1998 ANN. SURV. AM. L. 1, 33-36 (propounding a "realist" theory of sovereignty for general jurisdiction under which a defendant would be amenable to general jurisdiction if it is incorporated, shapes its corporate policy, or conducts its core activities in the forum)
224. B. Glenn George, In Search of General Jurisdiction, 64 TUL. L. REV. 1097, 1129 (1990) (suggesting the requisite minimum contacts for general jurisdiction exist only if a corporate office is in the forum)
225. Allan R. Stein, Styles of Argument and Interstate Federalism in the Law of Personal Jurisdiction, 65 TEX. L. REV. 689, 758 (1987) (urging that the appropriate standard is whether the "defendant has adopted the forum as its sovereign" by treating it as its home for most purposes)
226. Mary Twitchell, The Myth of General Jurisdiction, 101 HARV. L. REV. 610, 676 (1988) (advocating that general jurisdiction should be restricted to the defendant's place of incorporation and principal place of business).
227. People Solutions, Inc. v. People Solutions, Inc., 2000 WL 1030619 (N.D. Tex., 2000).
228. Winfield Collection, Ltd. v. McCauley, 105 F. Supp.2d 746 (E.D. Mich., 2000).
229. Bancroft & Masters, Inc. v. Augusta Nat'l Inc., 223 F.3d 1082, 1086-88 (9th Cir. 2000) (upholding personal jurisdiction under the "effects test" because the defendant's letter to Network Solutions, Inc. was deemed to have an effect on the plaintiff in California despite very limited contacts with the forum state of California)
230. Intercon, Inc. v. Bell Atl. Internet Solutions, Inc., 205 F.3d 1244, 1247-48 (10th Cir. 2000) (upholding the district court's assertion of personal jurisdiction over the defendant because once it had notice it was routing subscriber's e-mails to the wrong domain name of a global service provider, its actions were deemed to be purposefully directed to the forum state)
231. GTE New Media Servs. Inc. v. Bell-South Corp., 199 F.3d 1343, 1349 (D.C. Cir. 2000) (classifying the defendant's website as interactive, but refusing to assert personal jurisdiction over the defendant based solely on allegations that forum state residents could access the defendant's yellow pages websites)
232. Soma Med. Int'l v. Standard Chartered Bank, 196 F.3d 1292, 1297 (10th Cir. 1999) (characterizing a bank's website as passive because it offered information regarding its services and solicited business globally, yet refusing to assert jurisdiction even though a forum state resident could access the website)
233. Mink v. AAAA Dev. LLC, 190 F.3d 333, 336-37 (5th Cir. 1999) (characterizing the defendant's website as passive, and therefore, incapable of supporting personal jurisdiction because it posted product and service information; included a tollfree telephone number, mailing address and e-mail address; and provided a printable mail-in order form that could not be submitted via the Internet)
234. 3D Sys., Inc. v. Aarotech Lab., Inc., 160 F.3d 1373, 1378-80 (Fed. Cir. 1998) (conferring jurisdiction where non-Internet activities with the forum state were combined with minimal Internet activities and acknowledging that a passive website alone is not sufficient to confer personal jurisdiction)
235. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 419-20(9th Cir. 1997) (holding jurisdiction improper based on a passive website)
236. CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1264 (6th Cir. 1996) (finding that the defendant purposefully availed himself of the privilege of doing business in the forum state where he actively transacted business via the Internet and otherwise corresponded with the plaintiff in the forum state via emails).
237. Stomp, Inc. v. NeatO, LLC, 61 F. Supp. 2d 1074, 1078 (C.D. Cal. 1999) (declining to adhere to general concepts of foreseeability with respect to the defendant's actions within the forum state, and instead focusing on the intrinsic characterization of the forum, including the defendant's anticipated, but not as yet established, target audience)
238. see also Roche v. Worldwide Media, Inc., 90 F. Supp. 2d 714, 718 (E.D. Va. 2000) (holding personal jurisdiction improper because a passive website cannot direct itself purposefully to the forum state of Virginia based simply on a pornographic website that solicited e-mail addresses and credit card information)
239. Inset Sys., Inc. v. Instruction Set, Inc., 937 F. Supp. 161, 165 (D. Conn. 1996) (upholding jurisdiction based on a passive website because such website continuously advertised and solicited over the Internet and "purposefully availed itself of the privilege of doing of business in [the forum state]").
240. Inset Systems, Inc. v. Instruction Set Inc. 937 F. Supp. 161, 165 (D. Conn. 1996). The court ruled that the defendant's promotional website, because it was accessible in Connecticut, supported the exercise of jurisdiction in the state.
241. Telco Communications v. An Apple a Day, 977 F. Supp. 404, 407 (E.D. Va. 1997) (a website available twenty-four hours a day in the forum state constituted "a persistent course of conduct" in the state)
242. Heroes, Inc. v. Heroes Found., 958 F. Supp. 1, 5 (D.D.C. 1996) (suggesting that the existence of a website might be deemed a sustained contact with the forum because "it has been possible for a ... resident [of the forum] to gain access to it at any time since it was first posted").
243. Inset Systems, Inc. v. Instruction Set Inc. 937 F. Supp. 161, 165 (D. Conn. 1996).
244. Humphrey v. Granite Gate Resorts, Inc., 568 N.W.2d 715 (Minn. 1997).
245. Maritz Inc. v. CyberGold, Inc., 947 F. Supp. 1328 (E.D. Mo. 1996).
246. Ameritech Services, Inc. v. SCA Promotions, Inc., 2000 WL 283098 (N.D. III., 2000)
247. LFG, LLC v. Zapata Corp., 78 F. Supp.2d 731 (N.D. III., 1999)
248. Biometics, LLC v. New Womyn, Inc., 112 F.Supp.2d 869 (E.D. Mo., 2000)
249. Zippo Manufacturing Co. v. Zippo Dot Com, Inc. 952 F. Supp. 1119, 1124 (W.D. Pa. 1997).
250. GTE New Media Services Inc. v. BellSouth Corp., 199 F.3d 1343 (D.C. Cir. 2000)
251. Amberson Holdings LLC v. Westside Story Newspaper, 110 F.Supp.2d 332 (D. N.J., 2000)
252. Hasbro, Inc. v. Clue Computing, Inc., 66 F.Supp.2d 117 (D. Ma.., 1999)
253. Search Force Inc. v. DataForce Intern., Inc., 112 F.Supp.2d 771 (S.D. Ind., 2000)
254. American Eyewear, Inc.v. Peeper's Sunglasses and Accessories, Inc., 106 F.Supp.2d 895 (N.D. Tex., 2000).
255. Nissan Motor Co. Ltd. v. Nissan Computer Corp., 89 F. Supp.2d 1154 (C.D. Cal., 2000)
256. Euromark Designs, Inc. v. Crate & Barrel, Ltd., 96 F. Supp.2d 824 (N.D. III., 2000)
257. Neogen Corp. v. Neo Gen Screening, Inc., 109 F.Supp.2d 724 (W.D. Mich., 2000.
258. Blakey v. Continental Airlines, Inc., 164 N.J. 38 (N.J. 2000) (using effects test to determine that jurisdiction existed over non-resident defendants who allegedly posted defamatory messages on electronic bulletin board of their New Jersey-based employer).
259. Bensusan Rest. Corp. v. King, 937 F. Supp. 295, 301 (S.D.N.Y. 1996), aff'd, 126 F.3d 25 (2d Cir. 1997) (holding that to target a specific forum for purposes of jurisdiction, something more is needed than simply creating a website).
260. Butler v. Beer Across Am., 83 F. Supp. 2d 1261, 1267 (N.D. Ala. 2000) (recognizing the limited number of sales to forum residents)
261. Maritz, Inc. v. Cybergold, Inc., 947 F. Supp. 1328, 1333 (E.D. Mo. 1996) (emphasizing the importance of quantity of contacts such as 131 hits to a website).
262. Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 891-92 (6th Cir. 2002) (holding that quantity and specifically a "'percentage of business' analysis" is not the proper test for personal jurisdiction; rather the proper test is "whether the absolute amount of business conducted ... [in the forum state] represents something more than 'random, fortuitous, or attenuated contacts' with the state")
263. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985))
264. Tech Heads, Inc. v. Desktop Serv. Ctr., Inc., 105 F. Supp. 2d 1142, 1150-51 (D. Or. 2000) (upholding personal jurisdiction based on a "highly interactive website" that resulted in only one transaction with the forum state because the court focused on the requirement of "quality" rather than "quantity" of contacts)
265. Zippo Mfg. Co., 952 F. Supp. at 1126-27 (recognizing that 3000 subscriptions, or two percent of total subscriptions was a sufficient basis for jurisdiction because the Supreme Court emphasizes the nature and quality of contacts with the forum rather than the quantity of contacts)
266. Rainy Day Books, Inc. v. Rainy Day Books & Caf'e, LLC, 186 F. Supp. 2d 1158, 1166 (D. Kan. 2002) ("the critical inquiry in determining whether there was a purposeful availment of the forum jurisdiction is the quality, not merely the quantity, of the contacts").
267. Digital Control Inc. v. Boretronics Inc., 161 F. Supp. 2d 1183, 1186-87 (W.D. Wash. 2001) (describing the "something more" that is needed to establish jurisdiction was known as a "web site plus" rule where the plaintiff sought to obtain jurisdiction based on the defendant's website).
268. Alitalia-Linee Aeree Italiane S.p.A. v. casinoalitalia.com, 128 F. Supp. 2d 340, 350-51 (E.D. Va. 2001) (analogizing the defendant's online casino to that involved in Thompson v. Handa-Lopez, Inc., 998 F. Supp. 738 (W.D. Tex. 1998)).
269. The Thompson court held that the on-line casino generated enough activity to support a finding of personal jurisdiction. Id. at 744.
270. Medinah Mining, Inc. v. Amunategui, 237 F. Supp. 2d 1132, 1135-36 (D. Nev. 2002) (holding that personal jurisdiction does not exist over a defendant that posted allegedly defamatory information on a passive website operated by another party)
271. Med-Tec Iowa, Inc. v. Computerized Imaging Reference Sys., Inc., 223 F. Supp. 2d 1034, 1038 (S.D. Iowa 2002) (characterizing defendant's website as passive because it posts product information, a description of products, and instructions on how to place orders and allows visitors to download a catalog; this activity is not sufficient to confer personal jurisdiction)
272. SCC Communications Corp. v. Anderson, 195 F. Supp. 2d 1257, 1261 (D. Colo. 2002) (recognizing the ability to use e-mail hyperlinks from a website to communicate for informational purposes; however, refusing to assert personal jurisdiction because such website was classified as passive in nature)
273. Miami Breakers Soccer Club, Inc. v. Women's United Soccer Ass'n, 140 F. Supp. 2d 1325, 1329 (S.D. Fla. 2001) (recognizing that personal jurisdiction cannot be based on a passive website that advertises a product line, yet allows purchases only by telephone order)
274. Enter. Rent-A-Car Co. v. Stowell, 137 F. Supp. 2d 1151, 1158-59 (E.D. Mo. 2001) (holding that personal jurisdiction does not exist over a defendant whose website included photographs of classic cars, however, customers could not purchase the cars via the website or otherwise use the website to exchange information with defendant)
275. Fiber Network Solutions, Inc. v. Pac. Bell, No. C2-02-176, 2002 U.S. Dist. LEXIS 23252, at *11 (S.D. Ohio Oct. 25, 2002) (recognizing that personal jurisdiction cannot be asserted based on a passive website)
276. Rose v. Cont'l Aktiengesellschaft (AG), No. 99-3794, 2001 U.S. Dist. LEXIS 2354, at *1-5 (E.D. Pa. Mar. 2, 2001) (recognizing that in a products liability case where a German-manufactured tire caused an injury in Germany, general personal jurisdiction will not be upheld in Pennsylvania based on a website that is maintained merely for informational purposes)
277. Amazon.com, Inc. v. Kalaydjian, No. C00-1740R, 2001 U.S. Dist.LEXIS 4924, at *16-17 (W.D. Wash. Feb. 20, 2001) (acknowledging that the Amazon Tan.com website is a "text-book example of a passive site" because it provides information about tanning products and instructs customers how to purchase the products through the mail; the website does not allow customers to purchase products online or interact with the owner)
278. Metallic Ceramic Coatings, Inc. v. Precision Prods., Inc., No. 00-CV-4941, 2001 U.S. Dist. LEXIS 1224, at *10 (E.D. Pa. Feb. 13, 2001) (holding that a passive website that advertises a product line and provides a toll-free telephone number is not sufficient to confer personal jurisdiction).
279. In re Magnetic Audiotape Antitrust Litig., 171 F. Supp. 2d 179, 189 (S.D.N.Y. 2001) (holding that the minimum contact analysis is not satisfied for personal jurisdiction based on a non-interactive website that is written in the English language and maintained on a server within a foreign country), aff'd in part, No. 99 Civ. 1580 (LMM), 2002 U.S. Dist. LEXIS 8362 (S.D.N.Y. May 9,2002), and rev'd in part, Tex. Int'l Magnetics, Inc. v. BASF Aktien gesellsch aft, No. 01-7307, 2002 U.S. App. LEXIS 3853 (2d Cit. Mar. 12, 2002).
280. ASL Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 709 (4th Cir.2002).
281. Deleo v. Swirsky, No. 00 C 6917, 2001 U.S. Dist. LEXIS 8465, at *6-7, 12 (N.D. III. June 19, 2001) (conferring personal jurisdiction over defendant in a shareholder derivative suit because defendant's website actively solicited shareholders from the forum state, and therefore, pursuant to the state's long-arm statute qualified as transacting business within the state as well as doing business within the state).
282. No. 00-CV-12524-MEL, 2001 U.S. Dist. LEXIS 1310, at *4 (D. Mass. Jan. 2, 2001). "Spam" is defined by the Internet industry as "unwanted e-mail that is often sent en masse to e-mail addresses for commercial purposes."
283. Remsburg v. Docusearch, Inc., No. 00-211-B, 2002 U.S. Dist. LEXIS 1940 (D.N.H. Jan. 31, 2002) (upholding personal jurisdiction based on the New Hampshire long-arm statute where the requirement of transacting any business within the state is coextensive with a constitutional due process analysis).
284. In Remsburg, the defendant operated an Internet-based investigation and information service. Id. at *2.
285. A resident e-mailed several requests to the defendant and paid for services to locate a third party whom he later murdered. Id. at *3-6.
286. The court held that when the defendant accepted the requests and fulfilled them by providing the necessary information, it knew it was selling information to a New Hampshire resident, and therefore, had established a business relationship in New Hampshire. Id. at *16.
287. Michael Geist, Is There a There There? Toward Greater Certainty for Internet Jurisdiction, 16 Berkeley Tech. L.J. 1345, 1354 (2001) (breaking the issue of Internet jurisdiction into three "layers": adjudicatory jurisdiction, choice of law, and enforcement of judgments)
288. see also Henry H. Perritt, Jr., Will the Judgment-Proof Own Cyberspace?, 32 INT'L LAW. 1121, 1123 (1998) ("The real problem is turning a judgment supported by jurisdiction into meaningful economic relief. The problem is not the adaptability of International Shoe-obtaining jurisdiction in a theoretical sense. The problem is obtaining meaningful relief.").
289. International Shoe Co. v. Washington 326 U.S. 310 (1945).
290. Burnham v. Superior Court, 495 U.S. 604 (1990)
291. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (the reasonableness standard is couched in terms of "minimum contacts").
292. Morguard Investments Ltd. v. De Savoye [1990] 3 S.C.R. 1077 (real and substantial connection.)
293. UFJF et LICRA v. Yahoo! Inc. et Yahoo France, Tribunal De Grande Instance De Paris No RG: 00/05308, May 22, 2000.
294. Jim Hu and Evan Hansen, Yahoo Auction Case May Reveal Borders of Cyberspace, CNET News.com (11 August 2000), online: C-Net News ("A warning to Internet companies doing business abroad: Local governments may have the power to impose restrictions even if your servers are in the United States")
295. Kristi Essick, Yahoo Told to Block Nazi Goods From French, The Standard (20 November 2000), online, The Standard ("A French judge upholds his previous decision, ordering the company to install a filtering system for its auction site. The case raises questions about the jurisdiction of national courts over international Net companies"
296. Brian Love, Can Neo-Nazis Yahoo! in France?, Reuters (10 August 2000), online: ZDNet News ("French law prohibits the sale or exhibit of objects with racist overtones and none are directly available or visible on the Yahoo.fr.site.")
297. Kelly v. Ariba Soft, 280F.3d 934 (9th Cir. 2002) (collection of images by search engine to display in search results was fair use, but linking to the images on the searched site was illegal)
298. Yahoo!, Inc. v. La Ligue Contre le Racisme & L'Antisemitisme, 169 F. Supp. 2d 1181 (N.D. Cal. 2001) (noting French criminal conviction of Yahoo! for permitting members to auction Nazi paraphernalia, but refusing to enforce the French judgment on First Amendment grounds)
299. LICRA v. Yahoo! supra, also see Yahoo! ordered to bar French from Nazi sites, Reuters (20 November 2000), online: ZDNet UK http://www.zdnet.co.uk/news/2000/46/ns-19192.html
300. French Auschwitz Group Sues Yahoo, REUTERS (Jan. 22, 2001), available at http://www.zdnet.com/zdnn/stories/news/ 0,4586,2677090,00.html?chkpt=zdnnstop.
301. LICRA v. Yahoo! Inc., County Court of Paris, No RG: 00/05308, May 2000 (Interim Court Order), online: Internet Societal Task Force
302. Yahoo! Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, 169 F.Supp. 2d 1181 (N.D. Ca. 2001).
303. Panavision Int'l., L.P. v. Toeppen, 141 F.3d 1316, 1319-20 (9th Cir. 1998).
304. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.9 (1984).
305. YAHOO INC V LA LIGUE CONTRE LE 9th Circuit No. 0117424p-08/23/2004.
306. Quill Corp. v. North Dakota, 504 U.S. 298, 308 (1992) ("So long as a commercial actor's efforts are 'purposefully directed' toward residents of another State, we have consistently rejected the notion that an absence of physical contacts can defeat personal jurisdiction there.")
307. David R. Johnson and David G. Post, Law And Borders-The Rise of Law in Cyberspace, Stan. L. Rev. 1367 (1996).
308. Paul Meller, European Justices Pass Stiff E-Commerce Law, IDG (30 November 2000), online: IDG "The law, dubbed the Brussels I regulation, will come into effect next March. It states that where there is a dispute between a consumer in one EU country and an online retailer in another, the consumer will be able to sue in a court in his own country. The justice ministers and the European Commission, which drafted the regulation, argue that this focus on the consumer is essential to help get electronic commerce off the ground in Europe. "A lack of consumer confidence is the main thing holding up the development of e-commerce here," said Leonello Gabrici, spokesman on judicial matters for the Commission. He said that by handing jurisdiction of such cross-border disputes to the courts in the consumers' country, the regulation will be encouraging consumers to purchase online."
309. Rudder v. Microsoft Corporation (1999), 2 C.P.R. (4th) 474 (Ont. S.C.J.).
310. Bancroft & Masters Inc. v. Augusta National Inc., 223 F.3d 1082, 1087 (9th Cir.2000)
311. American Information Corp. v. American Infometrics, Inc., 139 F.Supp.2d 696 D.Md.,2001 (ruling that "[a] company's sales activities focusing generally on customers located throughout the United States and Canada without focusing on and targeting the forum state do not yield personal jurisdiction.")
312. Subafilms, Ltd. v. MGM-Pathe Communications Co. 24 F.3d 1088, 1097.
313. RESTATEMENT (SECOND) OF CONFLICTS OF LAWS § 6, 145, 222 (1971) (articulating the "most significant relationship" test and listing the choice of law principles according to which courts should determine the place with the most significant relationship to the dispute).
314. F.3d 82 (2d Cir. 2000). (following "law of the state with 'the most significant relationship' to the property and the parties".
315. Allarcom Pay Television Ltd. v. General Instrument Corp., 69 F.3d 381 (9th Cir. 1995) (ruling that a public performance occurs at the place or receipt of satellite transmissions)
316. National Football League v. TVRadioNow Corp., 53 U.S.P.Q.2d (BNA) 1831, 1834-35 (W.D. Pa. 2000) (holding that where defendants originated the streaming of copyrighted programming over the Internet from a website in Canada, public performances occurred in the United States because users in the United States could access the website and receive and view the defendants' streaming of the copyrighted material).
317. Antony L. Ryan, Principles of Forum Selection, 103 W. VA. L. REV. 167, 192 (2000) (providing various examples and noting that, at least in the domestic context, there is a "marked tendency" for courts to choose to apply their own law).
318. Jane C. Ginsburg, Copyright Without Borders? Choice of Forum and Choice of Law for Copyright Infringement in Cyberspace, 15 CARDOZO ARTS & ENT. L.J. 153, 173 (1997) ("[T]he court should either apply the law of the place of the server or of the defendant's domicile").
319. Gutnick (2002) 194 ALR 433, 445, 447 (Gleeson CJ, McHugh, Gummow and Hayne JJ), 448 (Gaudron J), 475 (Kirby J), 479 (Callinan J).
320. F 3d 256 (4th Cir, 2003) ('Young').
321. See also ALS Scan Inc v Digital Service Consultants Inc, 293 F 3d 707 (4th Cir, 2002) ('ALS Scan').
322. Cf Northwest Healthcare Alliance Inc v Healthgrades.com Inc (Unreported, United States Court of Appeals for the Ninth Circuit, Judges Hall, Tashima and Rawlinson, 7 October 2002).
323. On 28 April 2003 the United States Supreme Court refused to hear an appeal: Healthgrades.com Inc v Northwest Healthcare Alliance Inc, 155 L Ed 2d 826 (2003).
324. Regie National des Usines Renault SA v Zhang (2002) 187 ALR 1, 436-7 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ): In an action for a tort with a foreign element, the choice of law rule to be applied is that matters of substance are governed by the law of the place of the commission of the tort (lex loci delicti).
325. Oasis Corp. v. Judd, 132 F. Supp. 2d 612, 621 (S.D. Ohio 2001). at 622 (noting that the Zippo sliding scale does not apply to a noncommercial website because no purposeful availment exists).
326. Revell v. Lidov, 317 F.3d 467, 475-76 (N.D. Tex. 2001) (applying the effects test analysis to illustrate that the defendants had no knowledge where the plaintiff resided, and therefore, could not use an Internet bulletin board to intentionally direct any activity toward the plaintiff in the forum state).
327. Young v. New Haven Advocate, 315 F.3d 256, 263 (4th Cir. 2002).
328. N.W. Healthcare Alliance, Inc. v. Healthgrades.com, No. 01-35648, 2002 U.S. App. LEXIS 21131, at *5-6 (9th Cir. July 12, 2002) (using the effects test to find that personal jurisdiction did exist based on a website that rated home health care providers, including the plaintiff).
329. Kovacs v. Jim, No. 02 C 7020, 2002 U.S. Dist. LEXIS 21787, at *6 (N.D. I11. Nov. 8, 2002) (stating that personal jurisdiction does not exist over a defendant who does little more than make information available to interested parties)
330. Medinah Mining, Inc. v. Amunategui, 237 F. Supp. 2d 1132, 1136-37 (D. Nev.2002) (holding that personal jurisdiction does not exist over a defendant that posts allegedly defamatory information on a passive website).
331. Mcquarie Bank Ltd. v. Berg, [1999] NSWSC 625 (New South Wales Supreme Ct., June 2, 1999).
332. Gutnick v. Dow Jones & Co., Inc. [2001] VSC 305 (Supreme Ct. of Victoria, Aug. 28, 2001) (asserting jurisdiction of American publisher for publishing on its website an article allegedly defaming an Australian citizen).
333. In re Moshe D. (Court of Cassation, Italy, Jan. 10, 2001), English translation available at http://www.cdt.org/speech/international/ 001227italiandecision.pdf.
334. Australian Faces Trial for Holocaust Denial, Reuters (Dec. 14, 2000), available at http://www.zdnet.com.au/news/dailynews/story/ 0,2000020833,20107617.00.htm
335. Citron v. Zündel, Canadian Hum. Rts. Comm (Jan. 18, 2002), available at http://www.chrt-tcdp.gc.ca/decisions/docs/citron-e.htm