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.
Mary
Hodder
January
3, 2003