Full question:
In a copyright infringement case: 3 defendants; 2 in Illinois; 1 in Texas. All 3 were in Illinois at the time of the infringement. The defendants created A website to sell Greeting Cards. The copyright owner of the artwork for the greeting cards lives in California where he filed suit for infringement. The website remained up for four (4) years before it was discovered by the Plaintiff to be selling the copyrighted items. Can the Plaintiff establish 'Personal Jurisdiction' over the defendants simply because the greeting cards were being sold over the internet and because the Plaintiff's business is in California, which is also where he discovered the mirror website inadvertently while surfing the web? Can Personal Jurisdiction be established based on the circumstances that I've indicated?
- Category: Civil Actions
- Subcategory: Jurisdiction
- Date:
- State: California
Answer:
The answer will be a matter of subjective determination for the court, based on all the circumstances and facts involved. Factors considered, among others, include the advertising, promoting, selling, or other efforts to target its product in California involving the website. The more passive a web site is, the less likely that personal jurisdiction may be established. The more interactive a web site is, the more likely establishing personal jurisdiction is proper.
The trend established in Zippo Manufacturing Company v. Zippo Dot Com, Inc., appears to have emerged as the foremost applied analysis. In Zippo, the plaintiff, based in Pennsylvania, was well known for its lighters and held a trademark on the name "Zippo." The defendant, however, was from California and operated an interactive Internet news service. The defendant had registered "zippo" among various Internet domain names. The Zippo court, based on its review of relevant case law, stated that the likelihood that personal jurisdiction can be constitutionally exercised "is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet." Based on this ratio, the court developed a "sliding scale" of personal jurisdiction based on Internet usage:
"At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. E.g. CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir. 1996). At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise of personal jurisdiction. E.g. Bensusan Restaurant Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996). The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site. E.g. Maritz, Inc. v. Cybergold, Inc., 947 F. Supp. 1328 (E.D. Mo. 1996). "
The court's ruling has been interpreted as declaring it unfair to force Internet users to expect or reasonably anticipate being haled into any forum state where their web content may reach or be reached. Merely viewing a website will not create jurisdiction, as otherwise anyone who has a website could be hauled into court anywhere. For further discussion, please see:
http://grove.ufl.edu/~techlaw/vol4/issue1/dearing.html#ENIII
http://www.accessmylibrary.com/article-1G1-92801875/refining-zippo-test-new.html
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
