Re: DEC vs AltaVista

On 6/2/97, Carl Oppedahl <carl[_at_]oppedahl.com> wrote:
>
> On 06/02/97, John Noble <jnoble[_at_]dgsys.com> wrote:
>
> > Perhaps I have overstated the case, but it certainly says something
> > of the sort.
>
> Well, the judge didn't seem to think so, and his opinion probably counts
> for more than yours or mine. Here's what the DEC v Altavista judge had to
> say:
>
> The parties at bar are corporations who have attempted
> to tame the "Wild West" of the Internet through their
> private ordering. They have entered into a contract
> governing their commercial activities on the Internet.
> Digital sought (and indeed bought) all rights to a
> trademark identifying its search engine, with certain
> express exceptions; ATI agreed to enter into a licensing
> agreement. They both agreed that Massachusetts law would
> apply to its provisions. While ATI may have tried to
> structure its relationship with Digital so that it would
> not be susceptible to jurisdiction in Massachusetts, its
> subsequent Web activities bring ATI "over the line," and
> render jurisdiction appropriate.

I don't take your point. If it's "the subsequent web activities" which take ATI "over the line", the most we can say is that the contract alone might not be sufficient to support jurisdiction. It certainly doesn't stand for the proposition that the web activity is insufficient to confer personal jurisdiction. It certainly doesn't stand for the proposition that you must have a contract with a domiciled corp. and choice of law language in that contract, in order to be held to have submitted to jurisdiction.

> This case does not reach the issue of whether any Web
> activity, by anyone, absent commercial use, absent
> advertising and solicitation of both advertising and sales,
> absent a contract and sales and other contacts with the
> forum state, and absent the potentially foreseeable harm
> of trademark infringement, would be sufficient to permit
> the assertion of jurisdiction over a foreign defendant.
> While it raises some troubling issues, and while the
> traditional analyses must be informed by this new technology,
> ultimately, this is not the day nor the forum to resolve them.

I didn't suggest that the opinion holds that "any web activity by anyone" gives rise to jurisdiction everywhere. I'm simply suggesting that the commercial use of the internet, advertising and solicitation, is purposeful availment (Blue Note qualifications noted). And trademark infringement (or other tort) on the web satisfies the relatedness requirement. Under the court's alternative basis for finding jurisdiction, a tort committed within the forum, that would be sufficient, even without the contract and sales in Mass, as long as the exercise of jurisdiction was not unreasonbly burdensome. In other words, two of the three factors in the passage you quote, which are characteristic of web commerce, and which go to the Court's alternative rationale for finding jurisdiction, will do. The third factor, "contract and sales and other contacts", may also independently establish jurisdiction under the first Mass long-arm provision, but are unnecessary to the second and third Mass long-arm provisions, and, as I read it, are unnecessary to the due process analysis.

John Noble
<jnoble[_at_]dgsys.com> Received on Mon Jun 02 1997 - 19:53:33 GMT