The Internet Society (ISOC) provides a summary of a report from the Fordham Center on Law and Information Policy (CLIP), entitled “Internet Jurisdiction: A Survey of Legal Scholarship Published in English and United States Case Law” (PDF) examining the case-law and legal literature analyzing jurisdiction for claims arising out of Internet activity in the United States. The report finds that despite definitive case law, the practice of U.S. courts “lacks uniformity”.
The report concludes that U.S. Internet law jurisdictions are typically set by the Second and Ninth Circuit Courts. The Second Court covers New York, Vermont, and Connecticut. The Ninth Court covers the west coast of the US from Alaska to California and from Hawaii to Montana.
The CLIP research found that the most frequent Internet jurisdiction issues addressed by the courts are intellectual property and defamation cases. According to Wikipedia, Intellectual property (IP) is a legal concept that refers to creations of the mind for which exclusive rights are recognized. Under IP law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, discoveries and inventions; and words, symbols, and designs. Common types of intellectual property rights include copyright, trademarks, patents, and in some jurisdictions trade secrets. (rb- I have written a great deal about IP in my Patent Trolling articles.)
The researchers found that 62% of Internet jurisdiction cases centered on disputes about intellectual property. Specifically, 43% of the cases related to trademarks; 20% related to copyright; and 9% related to patents.
Within the Fordham data. There were also 35 defamation cases studied with 23% of these cases related to the intentional tort. Wikipedia defines defamation as communicating a false statement that harms an individual, business, product, group, government, religion, or nations’ reputation. Under common law, to constitute defamation, a claim must generally be false and made to someone other than the person defamed.’
According to the Fordham research, there are two primary cases the courts use to address most Internet jurisdiction cases, The first is Zippo Manufacturing Co. v. Zippo Dot Com, Inc. IT Law Wiki explains that Zippo created a three-prong test for determining whether a court has jurisdiction over a website. Under this test, there are three types of websites: Commercial, Passive, and Interactive.
Interactive websites allow the exchange of information between the website owner and visitors, may be subject to the jurisdiction, depending on the website’s level of interactivity and commerciality, and the number of contacts which the website owner has developed with the forum due to the availability of the website within the jurisdiction.
The other key case that Fordham found was Calder v. Jones. IT Law Wiki writes that this case resulted in the “effects test.” The article asserts, “… virtually every jurisdiction has held that the Calder effects test requires intentional conduct expressly aimed at or targeting the forum state in addition to the defendant’s knowledge that his intentional conduct would cause harm in the forum.
The article concludes that the Zippo and Calder tests remain the dominant ones applied, but that these tests are not mutually exclusive. Although Zippo is most often applied in matters of specific jurisdiction, there exists a varied and, at times, a blurred framework that incorporates the Zippo sliding scale and Calder’s effects test, as well as traditional standards for personal jurisdiction. Therefore, although the landscape for Internet jurisdiction matters has clear, predominant legal standards and tests, on the whole, when and how these are applied by U.S. courts lacks uniformity.
rb-
I am not a lawyer, and of course, you should seek the advice of an attorney.
While I am not a lawyer, I do have common sense and how is it possible for different courts to rule in different ways on the same topic when they have InnerTubes to rule consistently?
I believe this shows how out of touch the law is from technology.
Some of this could be due to the basic conservative nature of the legal profession.
I also believe that there is money in it for the politicians to make laws that are so confusing that lawyers are needed to understand the law. After all most Senators are lawyers.
Ralph Bach has been in IT long enough to know better and has blogged from his Bach Seat about IT, careers, and anything else that catches his attention since 2005. You can follow him on LinkedIn, Facebook, and Twitter. Email the Bach Seat here.
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