Re: DEC vs AltaVista

On 05/30/97, John Noble <jnoble[_at_]dgsys.com> wrote:
>
> On 5/29/97, Bob Stock <bstock[_at_]ucla.edu> wrote:
> >
> > As I read [DEC v. Alta Vista], web sites are like telephone
> > communications, only they are different, only they are the same.
> > Uh-huh. A person who makes a telephone call knows the precise
> > destination (bar forwarding) and knows the person is reached when
> > the other person answers. A person who makes a telephone call
> > specifically targets that destination. Some commercial web sites
> > clearly target local business, whereas with others the scope may be
> > broader or less clear. This is what causes courts fits, but to say
> > that ATI *knows* that its site will reach MA residents who access it
> > is tautological. It is simply repeating that the site is accessible
> > to MA residents, and that, in itself, says nothing at all, no matter
> > how many times it is repeated.
>
> What I think it says is that when you use an infringing trademark on
> the "world wide web" you are committing a tort in each jurisdiction
> in which it is in fact displayed, and that is sufficient to establish
> jurisdiction. To argue, after connecting your webpage to the web, that
> I only reproduced the mark on my computer here in California (or
> wherever), and that its display in Massachusetts was "incidental"
> "accidental" or "caused by the MA browser" is sophistry. When you put
> your business on the web you are, it seems to me, "purposely availing"
> yourself of the opportunity to do business everywhere (first due
> process consideration). That's the whole point of the web. And if you
> do something on the web that's intrinsically tortious, eg. libel,
> trademark infringement, copyright infringement, then you're going to
> satisfy the "relatedness" test, i.e. the claim is related to the
> contact, however minimal the contact (second DP consideration).
> Bingo -- you're in court in Alaska. Unless (third consideration), it
> would be manifestly unreasonable beause (unlike Alta Vista) you can't
> in fact afford a ticket to Alaska.

No, sorry, but DEC v Altavista says nothing of the sort.

Anyone who is reading the case must pay close attention to the fact that it is a contract case, not a tort case. Alta Vista entered into a contract with someone in Massachusetts (DEC). They are alleged to have breached it, and the Massachusetts court decided it had jurisdiction over both contract parties given that one of them was in the forum state.

The classic tort case that Mr. Noble imagines is one in which the defendant has no pre-existing relationships, contractual or otherwise, with anyone. Instead, the defendant has only a web site. The plaintiff in such a case understandably hopes the law would develop that personal jurisdiction can be had in any form in which it is possible to type in the URL and view the web site; such law would be good for plaintiffs.

The fact is that:

(1) it would be folly to suggest that PJ can be had everywhere you can click on a web site (i.e. everywhere the Internet goes). This would mean the web site operator could be sued in any country of the world, and, given packet radio, could be sued in space.

(2) courts have uniformly (with the exception of the Inset case) rejected this "sue them anywhere their web site can be clicked on" theory. The Blue Note case and the the Esqwire case are the first that come to mind.

Carl Oppedahl
<carl[_at_]oppedahl.com> Received on Sat May 31 1997 - 13:18:01 GMT