Personal Jurisdiction in Cyberspace:
Interactive Web Sites and Persistent Contacts

Jay Kesan
University of Illinois at Urbana-Champaign, College of Law

TABLE OF CONTENTS


  1. Brief Summary of Personal Jurisdiction Law
  2. Interactive Web Sites and Persistent Contacts
  3. Passive Web Sites
  4. Nature of Defendant's Activity
  5. Nature of Plaintiff's Claim
  6. Suggested Class Room Discussion Topic


B. Interactive Web Sites and Persistent Contacts



PANAVISION INTERNATIONAL v. TOEPPEN
United States Court of Appeals, Ninth Circuit, 1998
141 F.3d 1316


Thompson, Circuit Judge:

This case presents two novel issues. We are asked to apply existing rules of personal jurisdiction to conduct that occurred, in part, in "cyberspace." In addition, we are asked to interpret the Federal Trademark Dilution Act as it applies to the Internet.

Panavision accuses Dennis Toeppen of being a "cyber pirate" who steals valuable trademarks and establishes domain names on the Internet using these trademarks to sell the domain names to the rightful trademark owners.

The district court found that under the "effects doctrine," Toeppen was subject to personal jurisdiction in California. The district court then granted summary judgment in favor of Panavision, concluding that Toeppen's conduct violated the Federal Trademark Dilution Act of 1995 and the California Anti-dilution statute.

Toeppen appeals. He argues that the district court erred in exercising personal jurisdiction over him because any contact he had with California was insignificant, emanating solely from his registration of domain names on the Internet, which he did in Illinois. * * *

We have jurisdiction under 28 U.S.C. 1291 and we affirm. The district court's exercise of jurisdiction was proper and comported with the requirements of due process. Toeppen did considerably more than simply register Panavision's trademarks as his domain names on the Internet. He registered those names as part of a scheme to obtain money from Panavision. Pursuant to that scheme, he demanded $13,000 from Panavision to release the domain names to it. His acts were aimed at Panavision in California, and caused it to suffer injury there.


* * *


I. BACKGROUND


* * *


Panavision holds registered trademarks to the names "Panavision" and "Panaflex" in connection with motion picture camera equipment. Panavision promotes its trademarks through motion picture and television credits and other media advertising.

In December 1995, Panavision attempted to register a web site on the Internet with the domain name Panavision.com. It could not do that, however, because Toeppen had already established a web site using Panavision's trademark as his domain name. Toeppen's web page for this site displayed photographs of the City of Pana, Illinois.

On December 20, 1995, Panavision's counsel sent a letter from California to Toeppen in Illinois informing him that Panavision held a trademark in the name Panavision and telling him to stop using that trademark and the domain name Panavision.com. Toeppen responded by mail to Panavision in California, stating he had the right to use the name Panavision.com on the Internet as his domain name. Toeppen stated:

If your attorney has advised you otherwise, he is trying to screw you. He wants to blaze new trails in the legal frontier at your expense. Why do you want to fund your attorney's purchase of a new boat (or whatever) when you can facilitate the acquisition of 'PanaVision.com' cheaply and simply instead?


Toeppen then offered to "settle the matter" if Panavision would pay him $13,000 in exchange for the domain name. Additionally, Toeppen stated that if Panavision agreed to his offer, he would not "acquire any other Internet addresses which are alleged by Panavision Corporation to be its property." After Panavision refused Toeppen's demand, he registered Panavision's other trademark with Network Solutions, Inc. as the domain name Panaflex.com. Toeppen's web page for Panaflex.com simply displays the word "Hello."

Toeppen has registered domain names for various other companies including Delta Airlines, Neiman Marcus, Eddie Bauer, Lufthansa, and over 100 other marks. Toeppen has attempted to "sell" domain names for other trademarks such as intermatic.com to Intermatic, Inc. for $10,000 and americanstandard.com to American Standard, Inc. for $15,000.

Panavision filed this action against Toeppen in the District Court for the Central District of California. Panavision alleged claims for dilution of its trademark under the Federal Trademark Dilution Act of 1995, and under the California Anti-dilution statute. Panavision alleged that Toeppen was in the business of stealing trademarks, registering them as domain names on the Internet and then selling the domain names to the rightful trademark owners. The district court determined it had personal jurisdiction over Toeppen, and granted summary judgment in favor of Panavision on both its federal and state dilution claims. This appeal followed.


II. DISCUSSION


* * *


A district court's determination that personal jurisdiction can properly be exercised is a question of law reviewable de novo when the underlying facts are undisputed. A district court's factual findings regarding jurisdiction are reviewed for clear error.

There is no applicable federal statute governing personal jurisdiction in this case. Accordingly, we apply the law of California, the state in which the district court sits. California's long-arm statute permits a court to exercise personal jurisdiction over a defendant to the extent permitted by the Due Process Clause of the Constitution. The issue we address, therefore, is whether the requirements of due process are satisfied by the district court's exercise of personal jurisdiction over Toeppen.

Personal jurisdiction may be founded on either general jurisdiction or specific jurisdiction.


1. General Jurisdiction

General jurisdiction exists when a defendant is domiciled in the forum state or his activities there are "substantial" or "continuous and systematic." The district court correctly concluded that it did not have general jurisdiction over Toeppen. Toeppen is domiciled in Illinois and his activities in California are not substantial or continuous and systematic.


2. Specific Jurisdiction

We apply a three-part test to determine if a district court may exercise specific jurisdiction:

(1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or results from the defendant's forum-related activities; and (3) exercise of jurisdiction must be reasonable.

* * *


a. Purposeful Availment

The purposeful availment requirement ensures that a nonresident defendant will not be haled into court based upon "random, fortuitous or attenuated" contacts with the forum state. This requirement is satisfied if the defendant "has taken deliberate action" toward the forum state. It is not required that a defendant be physically present or have physical contacts with the forum, so long as his efforts are "purposefully directed" toward forum residents.


* * *


In tort cases, jurisdiction may attach if the defendant's conduct is aimed at or has an effect in the forum state. see Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). Under Calder, personal jurisdiction can be based upon: "(1) intentional actions (2) expressly aimed at the forum state (3) causing harm, the brunt of which is suffered-and which the defendant knows is likely to be suffered-in the forum state." Core-Vent Corp. v. Nobel Industries AB, 11 F.3d 1482, 1486 (9th Cir.1993).

As the district court correctly stated, the present case is akin to a tort case. Toeppen purposefully registered Panavision's trademarks as his domain names on the Internet to force Panavision to pay him money. The brunt of the harm to Panavision was felt in California. Toeppen knew Panavision would likely suffer harm there because, although at all relevant times Panavision was a Delaware limited partnership, its principal place of business was in California, and the heart of the theatrical motion picture and television industry is located there.


* * *


Toeppen argues he has not directed any activity toward Panavision in California, much less "entered" the state. He contends that all he did was register Panavision's trademarks on the Internet and post web sites using those marks; if this activity injured Panavision, the injury occurred in cyberspace.

We agree that simply registering someone else's trademark as a domain name and posting a web site on the Internet is not sufficient to subject a party domiciled in one state to jurisdiction in another. * * * [T]here must be "something more" to demonstrate that the defendant directed his activity toward the forum state. Here, that has been shown. Toeppen engaged in a scheme to register Panavision's trademarks as his domain names for the purpose of extorting money from Panavision. His conduct, as he knew it likely would, had the effect of injuring Panavision in California where Panavision has its principal place of business and where the movie and television industry is centered. Under the "effects test," the purposeful availment requirement necessary for specific, personal jurisdiction is satisfied.


b. Defendant's Forum Related Activity

The second requirement for specific, personal jurisdiction is that the claim asserted in the litigation arises out of the defendant's forum related activities. We must determine if the plaintiff Panavision would not have been injured "but for" the defendant Toeppen's conduct directed toward Panavision in California.

This requirement is satisfied. Toeppen's registration of Panavision's trademarks as his own domain names on the Internet had the effect of injuring Panavision in California. But for Toeppen's conduct, this injury would not have occurred. Panavision's claims arise out of Toeppen's California-related activities.


c. Reasonableness

Even if the first two requirements are met, in order to satisfy the Due Process Clause, the exercise of personal jurisdiction must be reasonable. For jurisdiction to be reasonable, it must comport with "fair play and substantial justice." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528 (1985).


* * *


As we have said, Toeppen purposefully directed his activities at Panavision in California. This placed the burden on him to "present a compelling case that the presence of some other considerations would render jurisdiction unreasonable." In addressing the question of reasonableness, we consider seven factors: (1) the extent of a defendant's purposeful interjection; (2) the burden on the defendant in defending in the forum; (3) the extent of conflict with the sovereignty of the defendant's state; (4) the forum state's interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff's interest in convenient and effective relief; and (7) the existence of an alternative forum. No one factor is dispositive; a court must balance all seven. Burger King, 471 U.S. at 476-77, 105 S.Ct. at 2184-85.

The district court found that Toeppen had not presented a compelling case that jurisdiction was unreasonable. We agree. The balance of the Burger King factors * * * tips in favor of the exercise of personal jurisdiction.

* * * Here, the degree of interjection was substantial. Toeppen's acts were aimed at Panavision in California. He registered Panavision's trademarks as his domain names, knowing that this would likely injure Panavision in California. In addition, he sent a letter to Panavision in California demanding $13,000 to release his registration of Panavision.com. The purposeful interjection factor weighs strongly in favor of the district court's exercise of personal jurisdiction.

* * *

The burden on Toeppen as an individual living in Illinois to litigate in California is significant, but the inconvenience is not so great as to deprive him of due process. As the district court stated, " 'in this era of fax machines and discount air travel' requiring Toeppen to litigate in California is not constitutionally unreasonable."

[The sovereignty] * * * factor concerns the extent to which the district court's exercise of jurisdiction in California would conflict with the sovereignty of Illinois, Toeppen's state of domicile. Such a conflict is not a concern in this case. The allegations in support of Panavision's state law claim and those in support of its federal claim under the Trademark Dilution Act require the same analysis. The federal analysis would be the same in either Illinois or California. In this circumstance, the exercise of jurisdiction by a federal court in California does not implicate sovereignty concerns of Illinois.

Panavision's principal place of business is in California. [The forum state's interest] factor weighs in Panavision's favor.

[The efficient resolution] * * * factor focuses on the location of the evidence and witnesses. It is no longer weighed heavily given the modern advances in communication and transportation. In any event, due to the limited amount of evidence and few potential witnesses in the present litigation, this factor is probably neutral.

In evaluating the convenience and effectiveness of relief for the plaintiff, we have given little weight to the plaintiff's inconvenience. It may be somewhat more costly and inconvenient for Panavision to litigate in another forum, but the burden on Panavision is relatively slight. This factor is essentially neutral, perhaps weighing slightly in Toeppen's favor.

Panavision has not demonstrated the unavailability of an alternative forum. In this case, Illinois is an alternative forum. As stated above, it may be more costly and inconvenient for Panavision to litigate in Illinois, but this is not an unreasonable burden. This factor weighs in Toeppen's favor.

In balancing the Burger King factors, we conclude that although some factors weigh in Toeppen's favor, he failed to present a compelling case that the district court's exercise of jurisdiction in California would be unreasonable. We conclude that all of the requirements for the exercise of specific, personal jurisdiction are satisfied. The district court properly exercised personal jurisdiction over Toeppen.


* * *



NOTES FOLLOWING PANAVISION INTERNATIONAL v. TOEPPEN


1. How much of a factor was Toeppen's behavior as a cyberpirate in Panavision? Suppose he only had registered one domain name, and he wasn't aware that it was a trademark, would the result have been under the court's reasoning in Panavision?


2. Suppose Panavision is a large corporation with extensive contacts in every state and the injury to Panavision is felt in every state, then could Panavision bring suit in any forum it chooses?


3. Could a web site based in the United States be subject to jurisdiction in a foreign country for its "effects" upon the foreign country? Or, could a web site in a foreign jurisdiction be subject to United States jurisdiction based on its "effects" in the United States.



BLUMENTHAL v. DRUDGE
United States District Court, District of Columbia, 1998.
992 F.Supp. 44

Friedman, District Judge:


This is a defamation case revolving around a statement published on the Internet by defendant Matt Drudge. On August 10, 1997, the following was available to all having access to the Internet:

The DRUDGE REPORT has learned that top GOP operatives who feel there is a double-standard of only reporting republican shame believe they are holding an ace card: New White House recruit Sidney Blumenthal has a spousal abuse past that has been effectively covered up.

The accusations are explosive.

There are court records of Blumenthal's violence against his wife, one influential republican, who demanded anonymity, tells the DRUDGE REPORT.

If they begin to use [Don] Sipple and his problems against us, against the Republican Party ... to show hypocrisy, Blumenthal would become fair game. Wasn't it Clinton who signed the Violence Against Women Act?

[There goes the budget deal honeymoon.]

One White House source, also requesting anonymity, says the Blumenthal wife- beating allegation is a pure fiction that has been created by Clinton enemies. [The First Lady] would not have brought him in if he had this in his background, assures the wellplaced staffer. This story about Blumenthal has been in circulation for years.

Last month President Clinton named Sidney Blumenthal an Assistant to the President as part of the Communications Team. He's brought in to work on communications strategy, special projects themeing--a newly created position.

Every attempt to reach Blumenthal proved unsuccessful.



Currently before this Court [is] * * * a motion to dismiss or transfer for lack of personal jurisdiction filed by defendant Matt Drudge. * * *


I. BACKGROUND


Plaintiffs Sidney Blumenthal and Jacqueline Jordan Blumenthal are citizens of the District of Columbia and have continuously lived in the District since 1985. Sidney Blumenthal works in the White House as an Assistant to the President of the United States. His first day of work as Assistant to the President was Monday, August 11, 1997, the day after the publication of the alleged defamatory statement. Jacqueline Jordan Blumenthal, Sidney Blumenthal's wife, also works in the White House as Director of the President's Commission On White House Fellowships.

Defendant Matt Drudge, a Takoma Park, Maryland native, is a resident of the State of California, where he has lived continuously since 1987. In early 1995, defendant Drudge created an electronic publication called the Drudge Report, a gossip column focusing on gossip from Hollywood and Washington, D.C. Mr. Drudge's base of operations for writing, publishing and disseminating the Drudge Report has been an office in his apartment in Los Angeles, California.

Access to defendant Drudge's world wide web site is available at no cost to anyone who has access to the Internet at the Internet address of "www.drudgereport.com." The front page of the web site contains the logo "Drudge Report." Defendant Drudge has also placed a hyperlink on his web site that, when activated, causes the most recently published edition of the Drudge Report to be displayed. The web site also contains numerous hyperlinks to other on-line news publications and news articles that may be of interest to readers of the Drudge Report. In addition, during the time period relevant to this case, Drudge had developed a list of regular readers or subscribers to whom he e-mailed each new edition of the Drudge Report. By March 1995, the Drudge Report had 1,000 e-mail subscribers, and plaintiffs allege that by 1997 Drudge had 85,000 subscribers to his e-mail service.

* * *

In late May or early June of 1997 * * * defendant Drudge entered into a written license agreement with AOL. The agreement made the Drudge Report available to all members of AOL's service for a period of one year. In exchange, defendant Drudge received a flat monthly "royalty payment" of $3,000 from AOL. During the time relevant to this case, defendant Drudge has had no other source of income. Under the licensing agreement, Drudge is to create, edit, update and "otherwise manage" the content of the Drudge Report, and AOL may "remove content that AOL reasonably determine[s] to violate AOL's then standard terms of service." Drudge transmits new editions of the Drudge Report by e-mailing them to AOL. AOL then posts the new editions on the AOL service. Drudge also has continued to distribute each new edition of the Drudge Report via e-mail and his own web site.

Late at night on the evening of Sunday, August 10, 1997 (Pacific Daylight Time), defendant Drudge wrote and transmitted the edition of the Drudge Report that contained the alleged defamatory statement about the Blumenthals. Drudge transmitted the report from Los Angeles, California by e-mail to his direct subscribers and by posting both a headline and the full text of the Blumenthal story on his world wide web site. He then transmitted the text but not the headline to AOL, which in turn made it available to AOL subscribers.

After receiving a letter from plaintiffs' counsel on Monday, August 11, 1997, defendant Drudge retracted the story through a special edition of the Drudge Report posted on his web site and e-mailed to his subscribers. At approximately 2:00 a.m. on Tuesday, August 12, 1997, Drudge e-mailed the retraction to AOL which posted it on the AOL service.


* * *


III. DRUDGE'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION


Defendant Drudge has moved, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, for an order dismissing this action for lack of personal jurisdiction or, alternatively, to transfer it to the United States District Court for the Central District of California. In order for this Court to maintain personal jurisdiction over a non-resident defendant, jurisdiction must be proper under the District of Columbia long-arm statute and consistent with the demands of due process. Plaintiffs have the burden of establishing that this Court has personal jurisdiction over defendant Drudge and alleging specific facts upon which personal jurisdiction may be based.


A. D.C. Long-Arm Statute


The only provision of the District of Columbia long-arm statute that is relevant to this case is Section 13-423(a)(4), which provides:

A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's ... causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the District of Columbia.

D.C.Code 13-423(a)(4). In order to establish personal jurisdiction under this provision a plaintiff must make a prima facie showing that (1) plaintiff suffered a tortious injury in the District of Columbia; (2) the injury was caused by the defendant's act or omission outside of the District of Columbia; and (3) defendants had one of three enumerated contacts with the District of Columbia. Plaintiffs must satisfy all three requirements and also establish minimum contacts within the confines of due process before the Court can exercise personal jurisdiction over defendant Drudge.

It is undisputed that the Drudge Report transmission in question was written, published and transmitted by defendant Drudge from his computer located in Los Angeles, California. It is also undisputed that the tortious injury caused by defendant Drudge's act of transmitting the report was suffered by the Blumenthals in the District of Columbia. The only question before this Court therefore is whether defendant Drudge (1) regularly does or solicits business in the District of Columbia, or (2) derives substantial revenue from goods used or consumed or services rendered in the District, or (3) engages in any other persistent course of conduct here.

Justice Ginsburg in Crane v. Carr has described these as the "plus factors," factors that demonstrate some "reasonable connection" between the jurisdiction in which the court sits "separate from and in addition to" the injury caused in the jurisdiction. Crane v. Carr, 814 F.2d 758, 762 (D.C.Cir.1987). The "plus factor" or factors need not be related to the act that caused the injury; all that is required is "some other reasonable connection between the defendant and the forum." The "plus factor" does not itself provide the basis for jurisdiction (the injury does) "but it does serve to filter out cases in which the inforum impact is an isolated event and the defendant otherwise has no, or scant, affiliation with the forum." The question here is whether plaintiffs have shown a "persistent course of conduct" by defendant Drudge in the District of Columbia or other reasonable connections between the District and Drudge besides the alleged defamatory statement and the alleged injury.

Plaintiffs point out that the Drudge Report has been regularly transmitted over the Internet to Drudge's subscribers and repeatedly posted on Drudge's web site, where it has been available 24 hours a day to District residents; that Drudge personally maintains a list of e-mail addresses, which enables him to distribute the Drudge Report to anyone who requests it, including e-mail addresses in the District of Columbia; and that he has solicited contributions and collected money from persons in the District of Columbia who read the Drudge Report. In addition, they state that Drudge has traveled to the District of Columbia twice, including once for a C-SPAN interview that was for the express purpose of promoting the Drudge Report. Plaintiffs also note, and defendant Drudge admits, that Drudge has been in contact (via e-mail, telephone and the U.S. mail) with District residents who supply him with gossip.

Defendant Drudge argues that he has not specifically targeted persons in the District of Columbia for readership, largely because of the non-geographic nature of communicating via the Internet. For example, while it is true that subscribers to the Drudge Report include District residents, generally the only information about those subscribers available to Drudge is an e-mail address-- an address that, unlike a postal address or even a telephone number, typically provides no geographic information. For instance, if Jane Doe from the District of Columbia subscribes to the Drudge Report, it is most likely sent to an e-mail address such as "janedoe@aol.com," and Drudge has no idea where Jane Doe lives or receives the Report. The same is true for on-line browsers who read the Drudge Report, since screen names used to browse the web also are not generally identified by geographic location. Defendant Drudge also claims that he has never advertised the Drudge Report column or web site in physical locations or in local newspapers in the District of Columbia.

Defendant Drudge also argues that his travel to Washington, D.C. is not sufficient to establish a persistent course of conduct in the District of Columbia because his contacts have been so infrequent and sporadic that they are simply not enough to be viewed as "persistent." As for his solicitation of contributions in the District of Columbia, Drudge claims that his solicitation was directed to all readers of the Drudge Report and not specifically aimed at the District. Furthermore, from that appeal Drudge received only approximately $250 from fewer than fifteen persons in the District of Columbia. The Court concludes that plaintiffs have the better of the argument; defendant Drudge has had sufficient contacts with the District of Columbia to warrant the exercise of personal jurisdiction.

The legal questions surrounding the exercise of personal jurisdiction in "cyberspace" are relatively new, and different courts have reached different conclusions as to how far their jurisdiction extends in cases involving the Internet. Generally, the debate over jurisdiction in cyberspace has revolved around two issues: passive web sites versus interactive web sites, and whether a defendant's Internet-related contacts with the forum combined with other non-Internet related contacts are sufficient to establish a persistent course of conduct. As one court has explained:

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. 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. 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. Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1124 (W.D.Pa.1997).


[The court discusses Heroes, Inc. v. Heroes Foundation, 958 F.Supp. 1 (D.D.C. 1996) which permits jurisdiction based on slight electronic connections but with other non-Internet contacts.]

As noted, many courts have focused on the level of interactivity of a web site in determining whether there was personal jurisdiction. In Cybersell, Inc. v. Cybersell, Inc., the court noted that an interactive web site allows users to "exchange information with the host computer" and concluded that courts must look at the "level of interactivity and [the] commercial nature of the exchange of information that occurs on the Web site to determine if sufficient contacts exist to warrant the exercise of jurisdiction." Cybersell, Inc. v. Cybersell Inc., 130 F.3d 414, 418 (9th Cir.1997). * * *

Under the analysis adopted by these courts, the exercise of personal jurisdiction is contingent upon the web site involving more than just the maintenance of a home page; it must also allow browsers to interact directly with the web site on some level. In addition, there must also be some other non-Internet related contacts between the defendant and the forum state in order for the court to exercise personal jurisdiction. Because the Court finds that defendant Drudge has an interactive web site that is accessible to and used by District of Columbia residents and, in addition, that he has had sufficient non-Internet related contacts with the District of Columbia, the Court concludes that Drudge has engaged in a persistent course of conduct in the District. The exercise of personal jurisdiction over defendant Drudge by this Court therefore is warranted.

Despite the attempts of Drudge and his counsel to label the Drudge Report as a "passive" web site, the Court finds this characterization inapt. The Drudge Report's web site allows browsers, including District of Columbia residents, to directly e-mail defendant Drudge, thus allowing an exchange of information between the browser's computer and Drudge's host computer. In addition, browsers who access the website may request subscriptions to the Drudge Report, again by directly e-mailing their requests to Drudge's host computer. In turn, as each new edition of the Drudge Report is created, it is then sent by Drudge to every e-mail address on his subscription mailing list, which includes the e-mail addresses of all browsers who have requested subscriptions by directly e-mailing Drudge through his web site. The constant exchange of information and direct communication that District of Columbia Internet users are able to have with Drudge's host computer via his web site is the epitome of web site interactivity.

Not only is defendant Drudge's web site interactive, the subject matter of the Drudge Report primarily concerns political gossip and rumor in Washington, D.C. Defendant Drudge characterizes himself as the "Thomas Paine of the Internet, ... who is circulating information for the citizenry reporting on [federal] governmental abuses .... and earthquakes...at the White House." Even though Drudge may not advertise in physical locations or local newspapers in Washington, D.C., the subject matter of the Drudge Report is directly related to the political world of the Nation's capital and is quintessentially "inside the Beltway" gossip and rumor. Drudge specifically targets readers in the District of Columbia by virtue of the subjects he covers and even solicits gossip from District residents and government officials who work here. By targeting the Blumenthals who work in the White House and live in the District of Columbia, Drudge knew that "the primary and most devastating effects of the [statements he made] would be felt" in the District of Columbia. He should have had no illusions that he was immune from suit here.

In addition, defendant Drudge also solicited contributions from District residents via the Drudge Report's homepage. While during the time period relevant to this case, defendant Drudge may have received only $250 from fifteen District of Columbia residents from that advertised solicitation, the Drudge Report was always accessible in the District, via AOL and through Drudge's world wide web site, making the advertised solicitation was repeatedly available to District residents.

Defendant Drudge also has had a number of non-Internet related contacts with the District. He sat for an interview with C-SPAN in Washington, D.C. and visited the District of Columbia on at least one other occasion. He also contacts District of Columbia residents via telephone and the U.S. mail in order to collect gossip for the Drudge Report. These non-Internet related contacts with the District of Columbia, coupled with the interactive nature of Drudge's web site, which particularly focuses on Washington gossip, are contacts that together are sufficient to establish that defendant Drudge engaged in a persistent course of conduct in the District of Columbia.

In sum, the Court concludes that the circumstances presented by this case warrant the exercise of personal jurisdiction under subsection (a)(4) of the District of Columbia long-arm statute because of: (1) the interactivity of the web site between the defendant Drudge and District residents; (2) the regular distribution of the Drudge Report via AOL, e-mail and the world wide web to District residents; (3) Drudge's solicitation and receipt of contributions from District residents; (4) the availability of the web site to District residents 24 hours a day; (5) defendant Drudge's interview with C-SPAN; and (6) defendant Drudge's contacts with District residents who provide gossip for the Drudge Report. The requirements of subsection (a)(4) of the District of Columbia long-arm statute have been satisfied.


B. Due Process


Traditionally, in order to exercise personal jurisdiction over an out-of-state defendant, a court must determine whether the defendant has sufficient minimum contacts with the jurisdiction in which the court sits such that maintenance of a suit does not offend "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). While in the Internet context there must be "something more" than an Internet advertisement alone "to indicate that the defendant purposefully (albeit electronically) directed his activity in a substantial way to the forum state," Cybersell, Inc. v. Cybersell, Inc., 130 F.3d at 414, such that he should "reasonably anticipate being haled into court" there, Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), that test is easily met here. Because subsection (a)(4) of the long-arm statute does not reach the outer limits of due process, and the Court has concluded that there are sufficient "plus factors" to meet the requisites of subsection (a)(4), it follows that there are also sufficient minimum contacts to satisfy due process. Drudge's motion to dismiss or transfer for want of personal jurisdiction therefore will be denied.


NOTES FOLLOWING BLUMENTHAL v. DRUDGE


1. Suppose Drudge had also defamed the Governor of Pennsylvania through his web site and e-mail. Could he have been subject to jurisdiction in Pennsylvania? Compare the analysis of Panavision and Blumenthal in finding jurisdiction.


2. Is the Internet analogous to conventional media?

Traditionally, the telephone, broadcasting, and the postal mail system have been considered distinct. For example, broadcasting a defamatory story about someone is quite different sending the same information to a friend in a letter. Can we draw distinctions on the Internet between the World Wide Web sites, World Wide Web discussion boards, Usenet newsgroups, Listservs, Email, Internet Relay Chat, Email, and Instant Messaging on how information is distributed. Should an analysis be based on the technology used, the effects in a particular case, or the intentions of the defendant? What are the ramifications for people and businesses using these technologies? Can they adequately foresee and plan for litigation in distant fora?


3. Using the court's analyses in Blumenthal, what would you recommend to Drudge to prevent him from being dragged into a another state court?


For example assume Minnesota uses the same standards for personal jurisdiction as those used by the D.C. Court?

1. Not publishing any stories about anyone residing in Minnesota

2. Refusing all donations from Minnesota

3. Not visiting Minnesota

4. Not allowing Minnesota residents to join his email distributions

5. Having a passive web site

6. Not allowing Minnesota to see his web page


4. Consider the Geographical Constraints of the Internet


The concept of technology or software placing restrictions in cyberspace has been elucidated by Lawrence Lessig in his article Reading the Constitution in Cyberspace, 45 Emory L.J. 869 (1996). Lessig discusses how our actions in cyberspace are also constrained by the software or the "code." Lessig states that "while regulation in real space is primarily regulation that relies upon the cooperation of the individuals who live under the regulation, regulation in cyberspace can be something different. The code in cyberspace--the software--can enforce its control directly." Id. at 899.

In discussing the relationship between the code and law Joel Reidenberg notes that "law and government regulation are not the only source of rule making. Technological capabilities and system design choices impose rules on participants. The creation and implementation of information policy are embedded in network designs and standards as well as in system configurations." Joel R. Reidenberg, Lex Informatica: The Formulation of Information Policy Rules Through Technology, 76 Tex. L. Rev. 553, 554-55 (1998). Reidenberg goes on to argue that these technological features must be understood and utilized for effective policy making.

The Internet as constructed by its "code" has very little relationship to geography. The Internet, in its present state, is a decentralized network of computers that communicates through Internet Protocol (IP) addresses. IP addresses are unique numbers that are assigned to every computer on the Internet. Because the IP addresses have no relationship to geography, unlike zip codes or area codes, it is impossible to obtain for any sense of geographical knowledge on the Internet. Thus web sites and email senders do not know the geographical location of their recipients, except when the receipts choose to identify themselves. The outcome of the Internet's architecture is that it places restrictions on the knowledge available to users.


5. In Blumenthal there was a combination of physical and electronic contacts with the forum state. Would it be fair to find jurisdiction based only on electronic contacts?


6. What would happen if Blumenthal brought suit in a state where Drudge was not a resident such as Arizona?


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