Accessing out-of-state server provides basis for personal jurisdiction

February 18, 2006 | by Evan Brown (@internetcases) | Comments Off 

Case presents atypical internet jurisdiction fact pattern.

Fact patterns dealing with personal jurisdiction arising from conduct on the Internet typically have the information service provider as the defendant, with the plaintiff as one who accessed that information. In a recent case from the U.S. District Court for the Northern District of Texas, however, that typical fact pattern is reversed.

Plaintiff Flowserve filed a lawsuit in a federal court against defendant Drago, a Missouri resident with no physical presence in Texas. Drago was accused of unlawfully accessing data and email servers located in Texas. Through this access, Flowserve alleged, Draco misappropriated confidential information with which he set up a competing enterprise.

In denying the defendant’s motion to dismiss for lack of personal jurisdiction, the court held that despite the lack of physical presence in Texas, Draco’s activities in accessing the server located in Texas contributed to the sufficient minimum contacts with the state to satisfy the International Shoe requirements. The court further determined that the exercise of personal jurisdiction comported with traditional notions of fair play and substantial justice.

Flowserve Corp. v. Midwest Pipe Repair, LLC, (Slip Op.) 2006 WL 265521 (N.D. Tex., February 3, 2006).

InternetCases.com Podcast — February 13, 2006

February 13, 2006 | by Evan Brown (@internetcases) | Comments Off 

Do websites have to comply with the Americans With Disabilities Act?



Download the podcast

This edition of the InternetCases.com Podcast addresses the recent case filed against Target Corporation, alleging that the Target.com website violates a California state law modeled after the Americans With Disabilities Act.

Running time: 6 min. 9 sec.
File size: 3.04 MB

Cyberlaw Central (mentioned in the podcast)

Music courtesy of Blandy under a Creative Commons license.

If you enjoy listening to the InternetCases.com Podcast, please vote for it at Podcast Alley.

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Does FON have some legal hangups?

February 10, 2006 | by Evan Brown (@internetcases) | 1 Comment 

There was some buzz this past week with the announcement that Skype and Google have both put their support behind the startup known as FON. Simply stated, FON provides the means for broadband subscribers to share their Internet connections with others through wi-fi hotspots. It’s a good idea in principle, but as this article from Forbes.com points out, the endeavor is not without its potential legal obstacles.

As the Forbes.com article observes, FON is cavalierly moving forward even though many broadband users’ agreements with their ISPs prohibit the sharing of accounts. Aside from these contract issues, some other possible questions concerning individual liability for FON users remain.

For example, what if a user sharing a connection distributed infringing content through that connection? Would the primary subscriber be considered an online “service provider” as that term is used in the safe harbor provisions of Section 512 of the Digital Millennium Copyright Act? Perhaps, but that’s probably not what members of Congress had in mind nearly a decade ago when they drafted the DMCA.

What about liability for making defamatory statements through a shared connection? Would the primary subscriber be immune from liability as a publisher under Section 230 of the Communications Decency Act? Once again, although there’s a good chance that the subscriber would find immunity under statute, the situation is quite different than that contemplated by the drafters of the legislation being applied. [More on Section 230 immunity]

Finally, what about distribution of obscene or illegal content? The average Internet user might be a bit uneasy about his or her IP address being associated with illegal pornography or the “chatter” of terrorists.

FON’s FAQ page states unambiguously that users would not be responsible for “illicit” activities of others conducted through a shared Internet connection. Perhaps that’s true, but a wise consumer should question whether the answer is as clear as FON would like it to be.

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No relief for prostitution website owner

February 8, 2006 | by Evan Brown (@internetcases) | Comments Off 

Court wouldn’t enter injunction where plaintiff had “unclean hands”

Plaintiff First Global Communications operates a website called “World Sex Guide.” In 2000, First Global got a federal trademark registration for the name of its site, to be used in connection with “guides in the field of travel and entertainment.” Defendant Powertools Software was the web developer that First Global hired to build the site.

First Global sued Powertools in federal court in the state of Washington, claiming that Powertools had set up several other websites that were illegally trading on the goodwill associated with the World Sex Guide trademark, and diverting visitors from the site. This act of diverting traffic was especially egregious, First Global claimed, since most of the content on the website consists of “travel reports” submitted by the site’s members. First Global asked the court to enter a preliminary injunction, ordering Powertools to stop diverting traffic and to turn over several domain names.

As it turns out, First Global’s site is a bit more than merely a guide to “travel and entertainment.” In fact, the site consists largely of information about how and where to pick up prostitutes, as well as advice on avoiding law enforcement efforts. Because of its content, the court determined that the website served an illegal purpose.

In reaching this conclusion, the court rejected First Global’s argument that the site’s content does not illegally advance prostitution. It also rejected First Global’s argument under the First Amendment, holding that “speech that aids or abets criminal activity can be prohibited.”

The court determined that entering an injunction “would have the effect of encouraging illegal activity and would serve an unconscionable purpose.” Relying on the equitable maxim that “those who seek equitable relief must come to court with clean hands,” the court refused to enter a preliminary injunction against Powertools.

First Global Communications, Inc. v. Bond et al., 2006 WL 278566 (W.D. Wash., Feb. 3, 2006).

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