This is Part One
of a two-part review by Professor Leora Harpaz of the material covered
in my Internet Law course during the Spring, 2012 semester.
Internet Law Spring 2012 Review - Part One
I. The Use of Analogy in Legal Reasoning (Chapter I)
A. In cases in which courts reason by analogy, they look for
similarities and differences between the subject of a case currently
before the court and the subjects of prior cases involving related
things. To decide on the proper analogy and therefore the appropriate
legal rule, it is necessary, as long as the two situations are not
identical, for a court to decide which similarities are important and
which differences are unimportant. This process of identifying relevant
similarities and irrelevant differences lies at the heart of reasoning
by analogy.
B. To illustrate the use of metaphor and analogy, the readings first
focused on two cases in which plaintiffs rely on a theory of trespass
to chattels to establish liability. In eBay, Inc. v. Bidder’s Edge,
Inc. (p. 9), the court identified two elements of the tort: “(1)
defendant intentionally and without authorization interfered with
plaintiff’s possessory interest in the computer system; and (2)
defendant’s unauthorized use proximately resulted in damage to
plaintiff.” (p. 14). The court concluded that defendant’s use of a
software robot was sufficiently tangible to amount to a trespass (akin
to the unauthorized use of telephone lines) and that damage could be
demonstrated because defendant consumed a portion of plaintiff’s
bandwidth and server capacity. By contrast, in Intel Corp. v. Hamidi
(p. 16), the court concluded that no liability existed based on the
sending of e-mail messages to plaintiff’s employees because there was
no evidence that receipt of the e-mails damaged plaintiff’s computer
system. The court distinguished cases where the defendant sent a large
volume of spam and placed a significant burden on the plaintiff’s
computer system by using disk space and draining processing power. In
Hamidi, the plaintiff’s real objection was to the content of
defendant’s e-mails and not the volume. The court relied on public
policy as a basis for its refusal to create “an absolute property right
to exclude undesired communications from one’s e-mail and Web servers.”
(p. 24). It, therefore, refused to treat computer servers like real
property for purposes of trespass law (trespass to real property does
not require a showing of injury to the property unlike trespass to
chattels where injury is required), thus rejecting the metaphor of the
internet as a physical space.
C. The use of metaphor and analogy are also relevant in cases involving
statutory interpretation such as under the doctrine of ejusdem generis:
“General words following a particular designation are usually presumed
to be restricted so as to include only things or persons of the same
kind, class, or nature, unless there is a clear manifestation of a
contrary purpose.” (p. 7). This doctrine was relevant to the decision
in Access Now, Inc. v. Southwest Airlines, Co. In that case, the court
had to decide whether a website is a place of public accommodation
under Title III of the ADA or whether places of public accommodation
only include physical spaces and not virtual spaces. In deciding
whether a website was covered by the statute, the court examined the
statutory definition of a place of public accommodation, including the
12 specific categories listed in the statute, and the legislative
history of the statute. The court concluded that Southwest’s “virtual
ticket counter” did not fall within the statute since the specifically
listed categories were all physical places. In addition, the court
rejected liability based on the nexus theory. Under that theory,
liability could be found where the inaccessibility of the website
impeded “access to a specific, physical, concrete space.” The Access
Now court distinguished Rendon v. Valleycrest Prod., Ltd., where an
automated telephone selection process was characterized as “a
discriminatory screening mechanism . . . which deprives [the
plaintiffs] of the opportunity to compete for the privilege of being a
contestant on the [game show].” (p. 38). According to the Access Now
court, “the website at issue here is neither a physical, public
accommodation itself as defined by the ADA, nor a means to accessing a
concrete space such as the specific televistion studio in Rendon.” (p.
38).
II. Problems of Geography and Sovereignty (Chapter II)
A. Application of Local Zoning Ordinances to Online Activity
1. These problems are difficult ones in the context of the internet
because the law is traditionally based on physical boundaries and
cyberspace makes such boundaries irrelevant. We began exploring these
questions by looking at local zoning ordinances applied to online
activity. In Voyeur Dorm L.C. v. City of Tampa (p. 40), the City of
Tampa tried to classify a residence as an adult entertainment facility
under its zoning laws. Voyeur Dorm provided 24 hour internet
transmission of the activities at the residence. Subscribers paid a fee
to watch and chat with the women who lived at the residence. Reversing
the district court, the Eleventh Circuit found that the residence was
not an adult entertainment establishment because adult entertainment
was not offered to the public at the residence since viewers of the
residence did so only from other locations. In Voyeur Dorm, the
activity physically occurred in Tampa, but that physical location was
irrelevant because the activity was being transmitted over the internet
rather than viewed at the Tampa residence. Therefore, the effects of
the activity were experienced elsewhere. Since the zoning ordinance
which classified adult entertainment facilities focused on the local
effects of the regulated facilities, it was interpreted not to apply to
the residence operated by Voyeur Dorm.
2. By contrast, in Flava Works, Inc. v. City of Miami (p. 44), the
Eleventh Circuit upheld Miami’s application of its restriction on the
operation of a business in a residential zone as applied to a similar
facility. Despite the fact that customers and vendors did not go to the
residence and its business operations were located elsewhere, the court
concluded that the residence where the video images were created was an
essential part of Flava Works’ business operations. While the residence
was not an adult entertainment facility, it was a business, defined
generally as “[a] commercial enterprise carried on for profit” (p. 47),
located in a residential zone.
B. Federal vs. State Power to Regulate the Internet and the Dormant
Commerce Clause
1. In striking down New York’s effort to criminalize the distribution
of adult material to a person who is a minor, the court in American
Library Association (ALA) v. Pataki (p. 48) was concerned that the
nature of the internet made it impossible to restrict the effects of
the New York law to conduct occurring within New York. The court struck
down the New York law as a violation of the Dormant Commerce Clause
based on each of three theories. According to the court, a state
regulation of the internet may be unconstitutional because it violates
the Dormant Commerce Clause in either of 3 ways:
(1) by having impermissible extraterritorial applications (impacts
activities which occur beyond its borders where the conduct being
regulated is legal in the state in which the user acts, but is illegal
in the state which seeks to assert the power to regulate that conduct);
or
(2) by imposing severe burdens on interstate commerce without those
burdens being offset by countervailing benefits in protecting state
citizens (a balancing test); or
(3) by creating the danger of subjecting persons or entities to
inconsistent regulations.
In ALA v. Pataki, the court recognized that the internet is an
instrument of interstate commerce and therefore subject to federal
regulatory power, but may be beyond the reach of state power in various
circumstances. The result in the case is consistent with a number of
other cases striking down similar state laws on the same grounds.
2. By contrast, in Washington v. Heckel (p. 64), the Supreme Court of
Washington upheld Washington’s anti-spam legislation against a Dormant
Commerce Clause challenge by concluding that the law’s benefits
outweighed its burdens and that the law had no sweeping
extraterritorial effect. Unlike the New York decision, the Washington
court did not view the three criteria relied on in ALA v. Pataki as
three separate Dormant Commerce Clause standards, but instead viewed
them all as factors to be considered under the balancing test (the
second of the 3 standards applied by the court in ALA v. Pataki). In
assessing the burdens on interstate commerce (with the commerce being
in the form of commercial advertising), the court viewed the burdens of
compliance with the Washington anti-spam law as not as serious as the
New York court’s assessment of the burdens imposed by the New York law.
In large part, the court was able to conclude that the burdens were
minimal by focusing on the burden of complying with Washington law as
to all spam sent by defendant (the burden of truthfulness - p. 68),
rather than the burden of separating spam sent to Washington residents
from spam sent to nonresidents. By contrast, the court viewed the
benefits as more significant than the New York court’s appraisal of the
limited benefits in the protection of children achieved by the
enforcement of the New York law.
3. In National Federation of the Blind v. Target Corp. (p. 70), a
federal district court also rejected a Dormant Commerce Clause argument
that California could not apply state anti-discrimination law to
Target’s website because of the extraterritorial effects of the
application of state law. In the lawsuit, the plaintiff sought to
require Target to alter its website to make it accessible to the blind.
In rejecting the Dormant Commerce Clause defense to the plaintiff’s
state law claim, the district court reasoned that Target was free to
create a separate version of its website for California residents in
order to comply with California law, thereby avoiding extraterritorial
effects. It is not at all clear that other courts would agree with the
reasoning of this case since the burden of potentially being required
to create 50 different versions of its website to comply with myriad
state regulations of the internet might be viewed as unconstitutional
under the balancing test which compares the burdens on interstate
commerce from complying with state law to the benefits from the
application of state law.
C. Jurisdiction to Adjudicate
1. Enforcement of Foreign Judgments
a. In this section, we considered the Yahoo! dispute over the
auctioning off of Nazi paraphernalia on its U.S. website. The
background of the case involves a French court applying French law to
Yahoo! because its website could be viewed in France. The Yahoo!
dispute raises the problem that different countries have different
standards for acceptable online content, with the U.S. standards being
the most permissive. Since online content is available everywhere,
either countries must allow foreign-based content to be accessible
despite its violation of local standards or foreign-based content that
is legal where it is created can be subjected to the standards of
myriad countries because it violates the standards of those countries.
In Yahoo!, Inc. v. La Ligue Contre Le Racisme Et L’Antisseittsme (p.
76), we examined Yahoo!’s efforts to convince a U.S. federal district
court in California not to enforce the order of the French court. The
French court ordered Yahoo! to make the Nazi artifacts unavailable to
French visitors to its U.S. website despite Yahoo!’s claim that to
comply with the order it would have to make the material unavailable to
all visitors to its website. The court rejected the argument that
Yahoo! lacked the technical ability to determine the geographical
origin of visitors to its U.S. website. It concluded that such
information could be obtained from a combination of the use of software
that identifies the geographical location of visitors to a website,
software that Yahoo! was already using, and directly asking visitors to
the website their geographical location. The federal district court in
California found in favor of Yahoo! in a case in which Yahoo! sought a
declaratory judgment that the French court order was not enforceable in
the United States because it conflicts with the First Amendment in that
it would require that Yahoo! censor the content of its U.S. website
despite the fact that the speech at issue is protected by the First
Amendment even though illegal in France. The district court also
rejected an argument that comity required the district court to honor
the French decree. The court reasoned that respect for a foreign
judgment was not required when enforcement would violate protections
for free speech under the U.S. Constitution. On appeal, the Ninth
Circuit reversed the decision on other grounds and did not reach the
First Amendment issue.
b. In Sarl Louis Feraud International v. Viewfinder, Inc. (p. 83), the
district court reached a similar conclusion to the district court in
the Yahoo! case in rejecting the enforcement efforts by a party who had
won a judgment in a copyright dispute in a French court against a U.S.
website. The district court dismissed the action, reasoning that the
photos at issue were protected by the First Amendment and, therefore,
the French judgment was not enforceable under the public policy
exception to the to New York Uniform Foreign Money Judgment Recognition
Act. On appeal, the Second Circuit overturned the dismissal and
remanded the case for further proceedings. Its rationale was that the
public policy exception was narrow and that it was not clear that the
photos were protected by “the fair use doctrine [which] encompasses all
claims of first amendment in the copyright field.” (p. 87).
2. Application of Criminal Law to Out-of-State Conduct
Hageseth v. Superior Court of San Mateo County (p. 89) is an example of
a typical internet criminal jurisdiction issue where the regulated
activity takes place outside the jurisdiction, but its effects are
experienced within the jurisdiction. Voyeur Dorm (p. 40) presented the
reverse of that problem because the activity took place locally, but
its effects occurred elsewhere. In Hageseth, the defendant was charged
with practicing medicine in California without a license. The issue in
the case was whether the California court had criminal jurisdiction
over the defendant as a result of online activity even though he had
not been physically present in the state, did not have any direct
interactions with residents of the state, and did not act through an
agent in the state. The court concluded that it did have criminal
jurisdiction because “a state may exercise jurisdiction over criminal
acts that are committed outside the state but are intended to, and do,
produce harm within the state.” (p. 92). Even though the defendant
issued a prescription to a California resident through a series of
intermediaries in other states, he knew the person he wrote the
prescription for resided in California and that the medication would be
sent to California. As a result, the court viewed the crime of
practicing medicine without a license as having been consummated in
California. Therefore, it was proper for California to exercise
extraterritorial criminal jurisdiction. The court did not believe that
the fact that the regulated activities occurred in cyberspace instead
of real space should limit state court jurisdiction.
3. Personal Jurisdiction
a. To exercise personal jurisdiction over a nonresident defendant,
there must be a long-arm statute which authorizes a state’s courts to
exercise jurisdiction under the circumstances. In addition, the
exercise of jurisdiction must comply with the Due Process Clause. The
state can, but need not, exercise jurisdiction to the full extent
permitted by the Due Process Clause.
b. The cases in this section examine personal jurisdiction arising out
of internet activities. In analyzing this issue, courts rely on
traditional personal jurisdiction principles and analysis, first
distinguishing between general jurisdiction (which exists when the
defendant’s activities in the forum are substantial or continuous and
systematic and where the cause of action need not arise from the forum
contacts and which is not usually present in the cases we read) and
specific jurisdiction (where the cause of action must arise out of the
defendant’s contacts with the forum).
c. In cases where specific jurisdiction is invoked, the courts use the
test for minimum contacts to establish that due process is satisfied:
1) the defendant must have minimum contacts with the forum;
2) the claim must arise out of those contacts; and
3) the exercise of jurisdiction must be reasonable.
This test is designed to make sure that the exercise of personal
jurisdiction does not offend “traditional notions of fair play and
substantial justice.” Of central importance to the minimum contacts
analysis is the concept of purposeful availment - whether the defendant
has purposefully availed itself of the benefits of doing business in
the forum.
d. In applying these tests to the internet, controversy exists over
whether the creation of a website accessible within the jurisdiction is
enough to create purposeful availment. Some courts find it is because
the defendant has knowledge that the content of its site will be
available in the forum; others find it insufficient because the
defendant’s conduct is not specifically aimed at the forum, but is
aimed everywhere the internet is accessible. To resolve this issue,
some courts look at the nature of the defendant’s internet activities
(Zippo’s sliding scale test to evaluate the level of interactivity -
p.100). In this inquiry, they consider whether the defendant’s website
is passive or active and, because few websites are totally passive, how
active it is and whether, other than having a website, the defendant
has directed its activities at forum residents. These inquiries are
relevant because the court is interested in determining whether the
defendant’s activities are purposefully directed toward forum
residents. The courts are concerned with exposing the defendant to
jurisdiction everywhere based on internet activities because a website
automatically creates at least some presence in all jurisdictions and
internationally. Therefore, generally, more than having a passive
website is thought to be necessary for personal jurisdiction.
e. Specific business arrangements with forum residents, such as having
subscribers to an internet service who reside within the forum, explain
some of the cases including Zippo (p. 102). Such arrangements, which
are viewed as purposeful contact with the forum, rather than accidental
or fortuitous contact, satisfy the requirement of purposeful availment.
f. There is a disagreement among the courts over exactly what kind of
internet activity is required for jurisdiction and what kind of conduct
will be viewed as targeted at the forum. Some courts, for example,
reject Zippo’s focus on the level of interactivity of the defendant’s
website. As a replacement for the level of interactivity, some courts
look for a purposeful and specific effort to target residents of the
forum. Some recent decisions have emphasized the relevance of targeting
analysis which looks at whether the plaintiff targeted a defendant
within the forum, targeted its website to the state or manifested an
intent to target business within the state (see Paragraph I below which
discusses the Young case). No clear criteria for how to separate
targeting from occasional random contacts with the forum have yet been
clearly developed.
g. In addition to the general issue of personal jurisdiction, we also
looked separately at how to establish personal jurisdiction for
intentional tort claims. In these cases, the plaintiff must show either
sufficient contacts for general jurisdiction, or that the defendant
committed a tort within the forum, or that the defendant committed a
tort outside the forum that he knew or had reason to know would produce
harm within the forum state. This last category is a description of the
“effects test” from Calder v. Jones (p. 104-05 and p. 109) which
requires defendant commit an intentional tort, defendant expressly aim
its conduct at the forum causing harm the brunt of which is suffered in
the forum, and defendant know the plaintiff will suffer harm in the
forum.
h. In applying the effects test to cases where internet content is the
source of the harm, for example posting defamatory content online about
the plaintiff knowing that the plaintiff lives and works in the forum
and will be injured in her reputation there, courts vary in the extent
of the purposeful activity aimed at the forum they require to establish
personal jurisdiction. Amway Corp. v. Proctor & Gamble (p. 103) is
an example of the use of this effects or “express aiming” test in a
case asserting claims for intentional torts. In the case, the court
found personal jurisdiction existed in Michigan based on the fact that
the defendant placed defamatory statements on his website in Oregon,
the plaintiff corporation, a corporation with its principal place of
business in Michigan, suffered the brunt of the harm in Michigan, and
defendant, who had worked for the plaintiff, knowing that the plaintiff
would be harmed in Michigan, expressly aimed his conduct at Michigan.
Express aiming analysis is similar if not identical to targeting
analysis described in Paragraph I below.
i. Another application of the effects test to establish personal
jurisdiction is targeting analysis. In Young v. New Haven Advocate (p.
106), the Fourth Circuit used targeting analysis to reject personal
jurisdiction in a libel action filed in Virginia against two
Connecticut newspapers and concluded that the defendants’ websites did
not target Virginia since their online content was aimed at a local
Connecticut audience (despite the fact that the defendants’ actions in
publishing newspaper articles about a Virginia prison warden probably
satisfied the literal requirements of the effects test). In reaching
its conclusion that two online publication were not targeted at
Virginia, the court examined the entirety of the online publications
and not just the articles that were asserted to be libelous. Some
courts, such as the Ninth Circuit, use the phrase “express aiming” to
describe an analysis that is similar if not identical to targeting. The
phrase comes from the Calder case which states, in talking about the
defendants, that “their intentional, and allegedly tortious, actions
were expressly aimed at California.” Similarly, the use of the phrase
“targeting” analysis can be attributed to Calder which states that
“petitioners are not charged with mere untargeted negligence.”
j. In Tamburo v. Dworkin (p. 117), the Seventh Circuit applied the
Caldor effects test. In its discussion, the court reviewed the
disagreements in the courts over how to apply the effects test to
online tortious activity. These disagreements include the issue of
whether the Zippo sliding scale analysis should be applied in the
intentional tort context, and whether Caldor’s concept of express
aiming should be applied broadly or narrowly. The Amway case is an
example of a broad interpretation where all that is required is that
the defendant target the plaintiff whom the defendant knows resides in
the forum. Other courts interpret this requirement more narrowly and,
in addition, require that the forum be the focal point of the tort.
Young is an example of a narrow interpretation where the court requires
that the defendant intend to reach readers in the forum. The Tamburo
court suggests that this analysis could be applied to local
publications, but would not suffice in the case of a national
publication.
k. In Boschetto v. Hansing (p. 111), the Ninth Circuit refused to find
personal jurisdiction in California in a case in which a Wisconsin
seller sold an automobile to a California buyer on eBay. The court,
applying due process principles, reasoned that the sale was an isolated
transaction where the seller agreed to sell to the highest bidder,
wherever the buyer was located, the seller did not regularly conduct
business on eBay, and the interactivity of the eBay website was
irrelevant because it was operated by eBay and not by the defendant
seller. Under the circumstances, “a one-time contract for the sale of a
good that involved the forum state only because that is where the
purchaser happened to reside,” the contacts with the forum were
insufficient for personal jurisdiction. The court distinguished cases
“[w]here eBay is used as a means for establishing regular business with
a remote forum such that a finding of personal jurisdiction comports
with ‘traditional notions of fair play and substantial justice.’” A
concurring opinion emphasized that the contacts with California were
“random, fortuitous, or attenuated” and not purposeful.