CYBERLAW by waterwolltoremilion


									    CYBERLAW 2002

   Class 10: Jurisdiction Over
Americans in Foreign Courts/Foreign
  Defendants in American Courts
   Jurisdiction over Foreign
 Defendants in American Courts
• Minimum Contacts Analysis
• Court may stay proceedings under forum
  non conveniens
     Desktop Technologies v.
    Colorworks (E.D. Pa. 1999)
• Pa copying co. sues Canadian copying co. for
  trademark infringement of COLORWORKS TM
  through operation of
• Court applies minimum contacts analysis, Zippo
• Finds website purely passive: no sales, just ads
  and information. Orders must be made by fax
• No personal jurisdiction found
               Yahoo case
• The Northern District of California stated
  about the Yahoo! case that it "presents
  novel and important issues arising from
  the global reach of the Internet". What
  are these issues?
• What is the basis for the California court’s
  assertion of jurisdiction?
        Inconsistent Orders?
• Compare the orders of the French
  Tribunal de Grande Instance of November
  20, 2000 and the Northern District of
  California of November 7, 2001. Are they
  inconsistent? Do you think that Judge
  Fogel's ruling is correct? Why or why
  What’s Good for the Goose Is
    Good for the Gander?
• Would a U.S. court have exercised
  jurisdiction in a case analogous to the
  Yahoo! case? Why or why not?
Ben Laurie: An Expert’s
         An Expert’s Apology
• Ben Laurie has stated: "What is being fought
  over is literally what people think. No-one should
  be able to control what I know or what I think.
  Not the government. Not the Thought Police. Not
  my family. Not my friends. The Internet is pure
  information. The fact that I cast aside my
  libertarian leanings in order to answer the
  question for the court, and yet was still unable to
  help in any substantive way, I find encouraging.
  We know we've done the right thing when our
  own best efforts cannot thwart it. . .”
   Expert’s Apology Continued
• “Some people seem to think that this sets some
  kind of important precedent. If it does, then the
  precedent is surely that the Internet does not
  adapt well to the control of subject matter, not
  that governments will intervene and censor it
  successfully - people have been trying to do that
  since it started, and they've never got anywhere.
  This case is no exception."
• Do you agree or disagree? Why or why not?
• What service was iCraveTV set up to
  provide? What legal difficulties did the
  start-up encounter? What was its ultimate
  fate and why? What will be the future for
  online TV?
     iCraveTV (E.D. Pa. 2000)
• Toronto based company offered TV via
• Rebroadcasting from US channels in e.g.
  Buffalo, NY
• Apparently legal under Canadian law (as
  long as treated like cable providers)
• U.S. Court enjoined iCraveTV from
  broadcasting free internet TV into America
         Lessig on iCraveTV
• “The entertainment industry is trying to
  force the Internet into its own business
  model - the perfect control of content”
    Jurisdiction Over iCrave TV
• Billing itself as the world's first 24-hour-a-day
  free Internet TV companion, is
  run by former Fox Sports Net Pittsburgh
  General Manager William Craig and his
  business partner George Simons – PA
• Court finds jurisdiction also over company :
  sold advertising out of PA, streamed into US
               A Comeback?
• But Craig has already planned a
  comeback. He says the service was
  legal under Canadian copyright law, but
  illegally accessed in the U.S. So Craig
  has developed patent-pending software
  called iWall that will make it possible to
  block any Web service from being
  accessed in a particular jurisdiction.
• He expects to keep a new TV-on-the-
  Web service (at under $10 a month)
  within Canada. Craig hopes to negotiate
  Web deals with Canadian specialty
  channels and U.S. satellite stations.
              A Comeback?
• iWall itself should generate revenue, he
  adds, through sales to companies to
  block pornography and gambling sites.

 Lesson learned: "Life doesn't always
 move in straightforward vectors," Craig
 says of his radically revised business
 plan. "There are often twists and turns."
 About his future, Craig is unequivocal:
 "The game is not over yet."
    • Will HavenCo be
      successful in using
      Sealand as an off-
      government data
      haven? Why or why
• Most countries in Western Europe have
  signed treaties that establish a framework
  for the exercise of jurisdiction by courts of
  one country over the citizens of another
• E.g. Brussels Convention (15 EU MS) – in
  2001 updated with Brussels I Regulation
• Lugano Convention (EFTA members
   Brussels/Lugano Convention
• These Convention and even the Brussels I
  Regulation take a more formalistic approach to
  questions of jurisdiction that U.S. Courts are likely
  to take
• No tag jurisdiction under these Conventions
  (contrast with Burnham)
• Court located at place of performance of K has
  jurisdiction to hear disputes involving K
• Jur by court located at place of harm of tortious K
        U.S. Position/Comity
• No general obligation for U.S. Courts to
  give full effect to foreign judgments – rather
  U.S. courts have discretion to honor those
  judgments under principles of comity
• What’s comity
• Comity is an expression of one nation’s respect for
  its international obligations, balanced against the
  need to safeguard its own interests and interests of
  its citizens when t hey have been the subject of
  legal proceedings in foreign courts. E.g. Hilton v.
  Guyot (1895) – Supreme Court found a French
  judgment unenforceable because French courts
  would not have given effect to a similar judgment
  rendered against a French resident doing business
  in U.S.
              State Courts
• In state courts, applicable principles are
  likely to be those of the Uniform Foreign
  Money-Judgments Recognition Act,
  enacted by about 30 states – codifies
  common law governing enforcement of
  foreign judgments and simplifies procedure
  foreign judgment creditor must follow in
  seeking to get a foreign judgment registered
  in a jur where D has assets
Draft Hague Convention on Jurisdiction
 and Foreign Judgments in Civil and
         Commercial Matters
• Hague Conference on Private International Law
  has been working on this for several years
• Hague Conference is an intergovernmental
  organization with more than 50 MS,founded in
  1893, helping to promote harmonization of bodies
  of law important in cross-border trade
• Hague Service Convention is great success!
Draft Hague Convention on Jurisdiction
 and Foreign Judgments in Civil and
         Commercial Matters
• Draft treaty would facilitate enforcement of
  judgments rendered in one signatory state in
  the courts of another signatory state
• Similar to “full faith and credit” clause in
  U.S. Constitution
• Mired in controversy and unclear if
  convention will ever be finalized
 Main Sticking Point – different
  approaches to jurisdictional
   issues by U.S. and Europe
• European approach more formalistic but greater
• U.S. approach more fact-specific and contextual
  under International Shoe mimumum contacts
• Outside U.S., this approach is seen as part of U.S.
  propensity to litigation. Hostility to spread of U.S.
  litigation as well as to extensive discovery, class
  actions, and punitive damages (none of which are
  permissible in many countries outside U.S.)
           Current Situation
• Uncertainty surrounding when courts of one
  country will exercise jurisdiction to resolve
  disputes involving non-resident foreigners
  operating web sites from other countries
• Anyone engaged in Internet commerce must
  accept some risk of being drawn into
  litigation in a remote or hostile forum
• How can one minimize risk?

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