January 03, 2003
Jurisdiction Goes Global
Or, How to Make Things More Complicated

From the US Justice Department losing Elcomsoft, where jurors in San Jose, CA considered a Russian Company's awareness and intent in selling software the USDOJ believed was in violation of the DMCA, to the Kazaa case where five countries are involved, jurisdiction often emerges as the most critical factor in skirmishes over internet issues. However, the more recent conflicts over jurisdiction have involved distinctions between countries scattered around the globe, and questions of responsibility in locations where often the defendants have no relationships or business.

Jurisdiction has often been important in Internet cases within the US, such as in the AOL case where a subscriber was deemed pursuable in Virginia for posting messages in a Usenet group, using his account from his residence in Texas. Another case with similar implications for jurisdiction involved the criminal case of Matthew Kammersell (US v. Kammersell) who sent a bomb threat via instant message from his residence in Utah to his girlfriend at her workplace at AOL's service center in Ogden, Utah, via AOL's Virginia servers. He was hoping that the threat would enable her to leave work early so they could go on a date. In the case, he felt he should be pursued solely in Utah, but lost that jurisdictional argument, allowing him to be tried in Federal Court in Virginia. These cases set a juridictional precedent for pursing individuals in venues other than strictly in their home states for activities engaged in over the internet.

In the US, there continue to be decisions on jurisdiction issues, like the December 13, 2002 ruling in Young v. New Haven Advocate, where the US Court of Appeals (4th Circuit) decided (pdf of decision) against Stanley Young, a warden at the Wallens Ridge State Prison, in Big Stone Gap, Virginia, where the state of Connecticut contracts for prisoner incarceration. The New Haven Advocate and the Hartford Currant wrote articles that were allegedly defamatory about Young and of his work with Connecticut prisoners at Wallens Ridge. However, the court said jurisdiction could not be established in Virginia because the newspapers and their websites were not directed at a Virginia audience and therefore were not under Virginia jurisdiction. This case relied on International Shoe v. Washington (1945), where the Supreme Court ruled there are Due Process limitations for exercising personal jurisdiction. The Appeals Court writes in their decision, referring to International Shoe, "The question, then, is whether the defendant has sufficient minimum contacts with [the forum] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'"

More recently, there have been jurisdiction rulings like that in the DeCSS cases where judges have been asked to hold trials in California for the posting of code on Indiana servers by a Texas resident. The California court ruled that Matt Pavlovich couldn't be sued in California because of his lack of minimum contact there.

In cases where the disputed activities are entirely within the US, regarding expression or creation, the fair play concept of jurisdiction the Supreme Court laid out in the International Shoe case continues to be affirmed. However, cases involving parties and situations crossing national boarders are where the most interesting questions now arise, and there appear to be no clear answers about jurisdiction and responsibility. These kinds of international disputes about the sharing of materials over the Internet are the new frontier of jurisdictional issues.

On the one hand, there is the question of whether liability should transfer around the globe depending on where recipients of information and products live, verses the other perspective that relies on where creators manufacture their products. One noteworthy case involved France, which succeeded in pinning responsibility for search results using Yahoo of pro-Nazi content and auctions of Nazi memorabilia, illegal in France, for doing business in locations other than the company's headquarters. In the UEJF et LICRA v. Yahoo! Inc. et Yahoo France case, Yahoo was ordered "…to take all measures to dissuade and make impossible any access via Yahoo.com to the auction service for Nazi objects and to any other site or service that may be construed as constituting an apology for Nazism or contesting the reality of Nazi crimes…"- Judge Jean-Jacques Gomez, May 2000. These cases have long been accepted as having defined jurisdiction for doing business over the internet, so that an entity that accepts revenue from doing business in a place can be liable for conflicts there over their business activities. At the time the case seemed shocking. And yet it was accepted, and many companies including Yahoo and eBay control content to comply with French laws because of these cases.

But the new generation of jurisdiction skirmishes seems to involve plaintiffs looking for new definitions of jurisdiction. Companies and individuals are being pursued in locations over activities where they are not in business or have no residency. In some instances, the defendants moved their businesses to remote locations making it more difficult to pursue them. This isn't a new tactic, but the plaintiffs are looking to hold defendants responsible in courts in the plaintiff's home and they might succeed. And, for those legitimately located in remote spots, they may find themselves pulled into cases in far away places because of decisions favoring a far reaching jurisdiction.

For example, in the KaZaa case, the file sharing system was conceived of by a Scandinavian, who commissioned the software from developers in Estonia, and then sold the software to a company in the Pacific island nation of Vanuatu, whose executives work in Australia. One problem with this case is that not only are five jurisdictions involved, including the US, all with different interpretations of the law, but KaZaa is not a product that is sold, and does not receive revenue from users who might pirate copyrighted works while using the software. So judges in various locations interpret both the jurisdiction and business issues differently, making for a messy case. The entertainment industry is trying to force the case to be heard in the US, in California, because some of the code comes from Altnet, a company doing business in CA. Further complicating the issue is a ruling by a European court that declared KaZaa perfectly legal. Also, apparently many KaZaa users have recently replaced the software with KaZaa Lite, which was developed by a person calling himself Yuri and living in Russia. This latest version is unconnected with original company.

Recently, the Dow Jones News Service was deemed responsible in Australia for words published in Barron's, Dow Jones' business newspaper created and published in the US but available online. The Australian High Court believes it is appropriate to hear a defamation of character suit where the plaintiff lives in Victoria, even though the alleged harm occurred because of words written and published online from the US. In a Q&A from the BBC, Glenn Del Medico answers questions about how publishers in commonwealth countries have faced this before. He believes the jurisdiction question in the Dow Jones case is not unusual, even though the information was transmitted over the Internet, because before the Internet, broadcasters and newspaper publishers were liable for their work in commonwealth countries in much the same way. However, the difference here seems to be that publishers used to know where their news was going, because they had placed it there via a broadcast or news sale, whereas now, because of the reach of the internet, they could now find themselves with the incredible job of reviewing their work against local liability laws everywhere the Internet goes.

Regarding the Elcomsoft case, in the New York Times Jennifer Granick, director of the Stanford Center for Internet and Society, "praised the outcome, saying it showed the geographic limitations of the digital copyright law. Ms. Granick said that the jury essentially found that an overseas company could not be convicted of violating United States copyright law, assuming the company did not intend to break it." It may also be that in cases of software, given a certain amount of obscurity of the product, like the Elcomsoft eBook reader which modified the Adobe eBook software to allow it to read to the deaf, US courts are less willing to hold defendants liable across international boundaries.

Elcomsoft, the Dow Jones New Service and KaZaa cases are all challenging our notions of jurisdiction and where creators and publishers can be held responsible. These cases are defining a new kind of global jurisdiction that will have huge effects for established companies as well as individual users and creators who access and publish on the Internet. Depending on the outcomes, we may find ourselves individually responsible for effects around the world, which may be difficult to predict or control, because of diverse cultures and values, and the laws they reflect. The chilling effects of these jurisdiction decisions may make the Internet less free and expressive than it has been.

Posted by Mary Hodder at January 03, 2003 03:08 PM
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