Top Cyberspace Law Cases of 1997

1. RENO v. AMERICAN CIVIL LIBERTIES UNION
117 S. Ct. 2329 (1997)
First Amendment & indecent speech. Struck down on First Amendment grounds the Communication Decency Act's "indecent transmission" and "patently offensive display" provisions.

2. AMERICAN LIBRARY ASSOCIATION v. PATAKI
969 F. Supp. 160 (S.D.N.Y. 1997)
Dormant Commerce Clause & indecent speech. Struck down on Commerce Clause grounds a New York version of the Communication Decency Act. "First, the Act represents an unconstitutional projection of New York law into conduct that occurs wholly outside New York. Second, the Act is invalid because although protecting children from indecent material is a legitimate and indisputably worthy subject of state legislation, the burdens on interstate commerce resulting from the Act clearly exceed any local benefit derived from it. Finally, the Internet is one of those areas of commerce that must be marked off as a national preserve to protect users from inconsistent legislation that, taken to its most extreme, could paralyze development of the Internet altogether."

3. ZERAN v. AMERICA ONLINE
129 F.3d 327 (4th Cir. 1997).
ISP defamation immunity under Telecommunications Act of 1996. Zeran claimed that "AOL unreasonably delayed in removing defamatory messages posted by an unidentified third party, refused to post retractions of those messages, and failed to screen for similar postings thereafter." On a motion for judgment on the pleadings, the court ruled that 47 U.S.C. ¤ 230 "plainly immunizes computer service providers like AOL from liability for information that originates with third parties."

4. COMPUSERVE, INC. v. CYBERPROMOTIONS, INC.
962 F. Supp. 1015 (S.D. Ohio 1997)
ISP spam protection under common-law trespass. CompuServe filed for a preliminary injunction against CyberPromotions, a sender of unsolicited commercial e-mail messages ("spam"). The court accepted the theory of the case--common-law trespass--and found no First Amendment obstacle because CompuServe was not a state actor.

5. BERNSTEIN v. US DEPARTMENT OF STATE
974 F. Supp. 1288 (N.D. Cal. 1997)
First Amendment & encryption. Court declared current encryption export regulations (under the Department of Commerce) an unconstitutional prior restraint.

6. ZIPPO MANUFACTURING COMPANY v. ZIPPO DOT COM, INC.
952 F. Supp. 1119 (W.D. Pa. 1997)
Personal jurisdiction. In federal district court, Zippo Manufacturing sued Zippo Dot Com (a news-for-fee service) on various state and federal trademark claims. Dot Com moved to dismiss for lack of personal jurisdiction. The court performed a useful survey of Internet jurisdiction cases and proposed a 3-fold typology: (i) substantial business through the Internet (with contracts, sales, etc.); (ii) interactive site (gray area); (iii) purely passive advertisement site. Jurisdiction is warranted in Type 1, unwarranted in Type 3, and up-for-grabs in Type 2. The court found that Dot Com's connections to PN to be Type 1. "Dot Com has done more than advertise on the Internet in Pennsylvania. Defendant has sold passwords to approximately 3,000 subscribers in Pennsylvania [out of 140,000 subscribers worldwide] and entered into seven contracts with Internet access providers to furnish its services to their customers in Pennsylvania." This was enough contact to satisfy Due Process.

7. CYBERSELL, INC., an Arizona Corporation, v. CYBERSELL, INC., a Florida Corporation
1997 U.S. App. LEXIS 33871 (9th Cir. Dec. 2, 1997)
Personal jurisdiction. Cybersell AZ sued Cybersell FL for trademark violations in Arizona district court. Cybersell FL moved to dismiss for lack of jurisdiction. The court granted the motion. Cybersell FL's web site was "essentially passive" advertisement. The page did offer a link that invited browsers to e-mail the company for additional information. (The opinion does not specify if this was a "mailto" link that popped up an e-mail client or an html form that could be completed and submitted.) However, one could not sign up for the service on-line, and no money was exchanged on-line.
The court emphasized that Cybersell FL did nothing to specifically target AZ. It wrote: "No Arizonan except for Cybersell AZ "hit" Cybersell FL's web site. There is no evidence that any Arizona resident signed up for Cybersell FL's web construction services. It entered into no contracts in Arizona, made no sales in Arizona, received no telephone calls from Arizona, earned no income from Arizona, and sent no messages over the Internet to Arizona. The only message it received over the Internet from Arizona was from Cybersell AZ." (Query how the court knew that no Arizonan ever surfed the Cybersell FL site.) Importantly, the 9th Circuit found inapplicable the line of cases cited in AltaVista about defamation in national magazines. The court distinguished Calder v. Jones: "Because Shirley Jones was who she was (a famous entertainer who lived and worked in California) and was libeled by a story in the National Enquirer, which was published in Florida but had a nationwide circulation with a large audience in California, the Court could easily hold that California was the "focal point both of the story and of the harm suffered" and so jurisdiction in California based on the "effects" of the defendants' Florida conduct was proper. Calder, 465 U.S. at 789. There is nothing comparable about Cybersell FL's web page. Nor does the "effects" test apply with the same force to Cybersell AZ as it would to an individual, because a corporation "does not suffer harm in a particular geographic location in the same sense that an individual does." Core-Vent, 11 F.3d at 1486. Cybersell FL's web page simply was not aimed intentionally at Arizona knowing that harm was likely to be caused there to Cybersell AZ." Cybersell is thus in tension with much of the analysis in AltaVista.

8. ACLU OF GEORGIA, v. MILLER
1997 U.S. Dist. LEXIS 14995 (N.D. Ga 1997)
First Amendment & pseudonymity. A Georgia statute made it a crime for: "[no false identity] any person . . . knowingly to transmit any data through a computer network . . . for the purpose of setting up, maintaining, operating, or exchanging data with an electronic mailbox, home page, or any other electronic information storage bank or point of access to electronic information if such data uses any individual name . . . to falsely identify the person . . . [trademark / links] any person . . . knowingly to transmit any data through a computer network . . . if such data uses any . . . trade name, registered trademark, logo, legal or official seal, or copyrighted symbol . . . which would falsely state or imply that such person . . . has permission or is legally authorized to use [it] for such purpose when such permission or authorization has not been obtained." In a preliminary injunction posture, the court thought it likely that the statute was an unconstitutional content-based regulation that suffered also from vagueness.

9. NBA v. MOTOROLA, INC.
105 F.3d 841 (2nd Cir. 1997)
Federal copyright preemption and "hot news". Motorola ran a pager and web-site that would update sports scores almost in real-time. The NBA sued under a state common-law theory of misappropriation of hot news. Motorola defended with federal preemption. The court held that a narrow "hot-news" misappropriation tort survives preemption, but that Motorola's operation did not constitute a misappropriation (narrowly understood).

10. PLANNED PARENTHOOD v. BUCCI
1997 U.S. Dist. LEXIS 3338 (S.D.N.Y. 1997)
Trademark violation. Planned Parenthood sued Bucci, an anti-abortion political activist, who had registered the domain name www.plannedparenthood.com. Defenses based on parody and First Amendment were unavailing, and a preliminary injunction was granted.

11. DIGITAL EQUIPMENT CORPORATION v. ALTAVISTA TECHNOLOGY, INC.
960 F. Supp. 456 (D. Mass. 1997)
Personal jurisdiction. Digital, owner of the popular AltaVista search engine, sued AltaVista Technology (ATI) on sundry trademark claims. Digital had purchased the "AltaVista" trademark from ATI and licensed it back for limited use. Digital argued that ATI went beyond the terms of the license. Suit was brought in federal district court, in MA. ATI, a CA corporation, moved to dismiss for lack of personal jurisdiction. The court denied the motion. In deciding the issue, the court repeatedly claimed the importance of a contract between Digital and ATI. (The contract contained a MA choice-of-law clause, but no forum selection clause.) Thus, this case could stand for the unexceptional proposition that sufficient business contacts, as evidenced by the existence of a contract, can satisfy Due Process. (The record also showed 3 software sales to MA residents.) But notwithstanding the court's emphasis on contract, the actual analysis seems to focus on the specific cause of action. Likening trademark to libel, the court focused on a line of cases that upheld jurisdiction in the plaintiff's state of residence for defamation in national magazines. See Calder v. Jones; Keeton v. Hustler. Consider how the court discussed the "purposeful availment" prong of minimum contacts analysis: "Every day, potentially thousands of Massachusetts residents visit ATI's Web-site; and each "call" is "answered" by the display of allegedly tortious materials that cause harm here, there, and everywhere (but especially here). Since ATI knows that Digital is located here, the purposeful availment prong is met: ATI's conduct, by allegedly causing trademark infringement that it knows will have an effect on consumers in this state, and an especially harmful effect on Digital, whose trademark rights are at issue, see Panavision Int'l, L.P. v. Toeppen, 938 F. Supp. 616, 621-22 (C.D. Ca. 1996), satisfies the constitutional "purposeful availment" due process tests."

12. LOCKHEED MARTIN CORPORATION v. NETWORK SOLUTIONS, INC.
1997 U.S. Dist. LEXIS 10314 (C.D. Cal. 1997)
Indispensable parties in domain name disputes. Lockheed sued NSI for registering domain names that Lockheed had trademarked. NSI moved to dismiss for failure to join the domain name registrants because they were indispensable parties, FRCP 19(a). Viewing NSI as a joint tortfeasor, the court found the registrants not necessary. The court noted that the registrants could be brought into the litigation through impleader based on an indemnification agreement.

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