, Research Paper
E-Jurisdiction: Jurisdiction in the Global Internet Age
E-Jurisdiction (or the lack thereof)… At the beginning of a new century, the Internet Revolution is upon us. At the turn of the last century, when the Revolution was Industrial instead of Virtual, the courts and legislatures struggled to enact policies to keep pace with the changing times and technologies. Laws governing labor practices, trade practices, anti-trust regulations, and even intellectual property all developed in reaction to the surges of the new industrialized world. So too, in this new E-world, lawmakers are now attempting to quell the erosion wrought by the powerful Digital wave on our existing legal systems. Whether by adapting old mores to fit new paradigms, or by creating new standards with which to judge novel issues, lawmakers of the new millennium face overwhelming challenges in confronting the growing expanse of cyberspace. One such challenge is how to address the issue of Jurisdiction over disputes in a new global marketplace where the only boundaries are bandwidth. This paper will discuss some of the problems of E-Jurisdiction and present some possible solutions. “The unique nature of the Internet highlights the likelihood that a single actor might be subject to haphazard, uncoordinated, and even outright inconsistent regulation by states that the actor never intended to reach and possibly was unaware were being accessed. Typically, states’ jurisdictional limits are related to geography; geography, however, is a virtually meaningless construct on the Internet.” American Library Association v. Pataki, 969 F. Supp 160 (SDNY 1997). I. Problems with traditional jurisdiction analyses Traditionally, U.S. Courts have exercised jurisdiction only over those who had “minimum contacts” with the state in which the suit was filed. See International Shoe v. Washington, 326 U.S. 310 (1945). In an age where someone in Singapore can have “minimum contacts” merely by routinely accessing a server in San Francisco, this rule seems overly broad. However, courts have differed whether to find jurisdiction in the virtual context. For example, in CompuServe, Inc. v. Patterson, the court held that a Texas programmer who wrote programs for use by CompuServe and uploaded them to CompuServe’s site in Ohio was subject to jurisdiction in Ohio. 89 F.3d 1257, 6th Cir. (Ohio), Jul 22, 1996. In Inset Systems v. Instruction Set, Inc., the court held that a company which advertised on the Internet and whose site was accessed from within Connecticut was subject to jurisdiction in Connecticut. 1996 U.S. Dist. LEXIS 7160, 1996 WL 498411. Conversely, in Bensusan Restaurant Corp. v. King, the court found that website advertising viewed by New York residents did not establish jurisdiction over a trademark action in New York. 937 F.Supp. 295, S.D.N.Y., Sep 09, 1996. This uncertainty has caused great unrest in the legal and academic communities, both domestically and internationally. Collateral to the issue of jurisdiction over disputes arising in cyberspace is the problem of conflict of laws. For instance, what if an Italian company infringes a British trademark on a server in Venezuela? Even assuming one can settle the jurisdictional quandary, the problem of which laws to apply becomes extremely relevant when the outcome of the dispute entirely depended on which laws govern. For example, in 1998 a German court found that a German executive of the U.S.-based CompuServe was liable for pornography stored on a CompuServe computer in Germany. [NOTE 1]. This was despite the fact that Germany had passed a law in 1997 exempting Internet Service Providers from liability for content stored or transmitted through their servers, and despite the fact that both the prosecution and the defense urged acquittal. [NOTE 2]. Yet the German judge ignored all this and attempted to apply U.S. law. Although the decision was later overturned, it underscores the difficulty and confusion of multi-party and multi-national litigation in the Digital Age. Equally problematic is the issue of enforcing judgments on a global scale. “Although U.S. courts have traditionally been quite liberal in recognizing and enforcing foreign judgments (i.e., so long as there are no serious due process violations), U.S. judgments have not received similar treatment in foreign jurisdictions.” [NOTE 3]. The Brussels Convention and the Lugano Convention provide for the enforcement of judgments within European Union countries. [NOTE 4]. However, the United States is not a party to these agreements and must rely on individual countries’ laws for recognition and enforcement of judgments which are often quite restrictive. [NOTE 5]. II. Attempts at a solution. At the suggestion of the United States, the Hague Conference on Private International Law agreed in May 1993 to begin work on a jurisdiction and judgments convention. [NOTE 6]. In October of 1999, the Convention released a preliminary draft outlining methods to combat international jurisdiction and enforcement problems. [NOTE 7]. Article 3 of the Convention confers general jurisdiction over a defendant in a State where he is “habitually resident” and then defines that term. This effectively eliminates the need for the “minimum contacts” test. Article 12(4) confers exclusive jurisdiction in the case of patents, trademarks, and trade dress to those states in which the holders of such rights have applied for or obtained registration. This section does not apply to Copyrights even though copyright registration is possible. As it reads currently, this section does not apply to revocation or infringement actions, only objections to the registration, validity or nullity of the rights, though “infringement” and “revocation” are bracketed for future discussion. These words should be included in the section since the most common defense to any infringement action is invalidity of the patent or trademark. Therefore, exclusive jurisdiction should extend to infringement actions. [NOTE 8]. Of note is that this section confers jurisdiction for Trademarks but not Copyrights. One would suppose the argument for excluding Copyrights is that Copyrights in many jurisdictions do not require registration. However, Trademarks also are often derived from common law usage and are not necessarily also registered. Article 18 of the Convention expressly prohibits certain grounds of jurisdiction. Of note, is the prohibition of what is commonly known as “tag jurisdiction.” Countries such as the United States and Australia commonly exercise this jurisdiction over persons who are merely passing through the State. [NOTE 9]. In contrast, Article 17 permits states to adopt jurisdictional practices so long as they are not prohibited by Article 18. This leaves a small loophole for states to ‘work around’ the Convention. Articles 23-28 establish outlines for enforcing judgments. Specifically, Article 24 provides that no judgment shall be enforceable under the Convention whose basis was an Article 17 jurisdiction. Perhaps this is in effect a deterrent to exploiting the loophole mentioned previously. Article 28 provides States with some discretion to refuse to enforce judgments in circumstances where a party’s right to Due Process has been violated. III. Conclusion The Hague Draft Convention seems to be a good starting point from which to tackle the problem of the information age’s impact on traditional intellectual property law. It does address the issues of jurisdiction and enforcement. However, it does not address the highly complex issue of “conflict of laws,” perhaps because such an agreement may be ill-equipped to do so. Good starting point or not, many believe that the only real solution to the problem is a system of transnational tribunals. [NOTE 10]. Perhaps the legal world should follow the example of the private dispute resolution world and implement a virtual tribunal. Companies such as CyberArbitration.com and others are pioneering the movement to resolve commercial disputes via Internet. Perhaps in the not too distant future, InternetCourt.com will be a reality in which parties from any part of the world can argue before proctors from any part of the world in a global forum with uniform guidelines and “justice for all.” “It cannot be helped, it is as it should be, that the law is behind the times.” – Oliver Wendell Holmes
[FOOTNOTES] 1. Associated Press, May 28, 1998. 2. Id. 3. http://www.lectlaw.com/files/bul12.htm, excerpted from 9/93 U.S. Commerce Department material. 4. Id. 5. Id. 6. Jeffrey D. Kovar, Commentary: Perspectives on the Hague Draft Convention, International Intellectual Property Law and Policy, Vol. 6, 29-1. 7. See Hague Conference On Private International Law, Preliminary Draft Convention On Jurisdiction And Foreign Judgments In Civil And Commercial Matters adopted by the Special Commission on 30 October 1999. 8. See Martin Adelman, Commentary: The Hague Draft Convention on Jurisdiction: An Introduction to the Intellectual Property Issues, International Intellectual Property Law and Policy, Vol. 6, 28-1. 9. Jeffrey D. Kovar, Commentary, 29-3. 10. See Gail Evans, Commentary: Proposed Hague Convention, International Intellectual Property Law and Policy, Vol. 6, 32-1, at 32-3.