Denise M. Howell is a member of Crosby Heafey Roach & May’s appellate and intellectual property practices in Los Angeles. She is also a blogger.
Before year end, the California Supreme Court will issue its decision in Pavlovich v. Superior Court, the latest in a series of cases nationwide in which courts have had to confront the jurisdictional significance of activities on the Web. It has long been true in this country that jurisdiction may sometimes be asserted by a state in which the defendant has never set foot or engaged in any conduct. See, e.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). On the Internet, this has meant, for example, that a resident of Texas who contracted with Ohio-based CompuServe to make shareware available through the CompuServe system was subject to suit in Ohio although he had never been to the state [CompuServe, Inc. v. Patterson, 89 F. 3d 1257 (6th Cir. 1996)], and that an Illinois resident with insubstantial California contacts was subject to suit there when he allegedly registered trademarks as domain names with the knowledge that the names belonged to the plaintiff, with the intent to interfere with the plaintiff’s business, and with knowledge that the California plaintiff would suffer harm in that forum [Panavision International, L.P. v. Toeppen, 141 F. 3d 1316 (9th Cir. 1998)]. The Pavlovich case, however, has the potential to create yet a new and broader rule. Unless the California Supreme Court reverses the decision now before it (formerly reported at 91 Cal. App. 4th 409; PDF), the question of California jurisdiction over tort claims against Web publishers no longer may be limited by considerations of the defendant’s knowledge or intent. Instead, it may turn partly on amorphous concepts like “industry presence,” and partly on the misapplication of spatial metaphors to the non-spatial network that is the Web.
One of the more unique aspects of the decision now under review is its extension of the “industry presence” concept as a basis for jurisdiction to effects felt by a defendant’s noncommercial Web site. In Cybersell, Inc. v. Cybersell, Inc., 130 F. 3d 414 (9th Cir. 1997), the Ninth Circuit considered whether and how the “effects test” for special jurisdiction set forth in Calder v. Jones, 465 U.S. 783, (1984) might be satisfied by the act of posting to the Web. Under that test, effects of tortious conduct felt in the jurisdiction where the plaintiff lives may be enough to trigger jurisdiction. In Cybersell, however, the court was careful to note that the “effects test” does not apply with equal force where a corporate rather than an individual plaintiff is involved, “because a corporation does not suffer harm in a particular geographic location in the same sense that an individual does.” Cybersell, 130 F. 3d at 420 (citation and internal quotes omitted). The Ninth Circuit likewise was unwilling to find jurisdiction under the “effects test” where an alleged trademark infringement over the Internet occurred on “an essentially passive web page advertisement. Otherwise, every complaint arising out of alleged trademark infringement on the Internet would automatically result in personal jurisdiction wherever the plaintiff’s principal place of business is located.” Id. at 420 and n.6. Finally, the Ninth Circuit confirmed that the commercial versus noncommercial nature of the defendant’s activity also should play a role in the analysis, as initially set forth in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997): “the common thread, well stated by the district court in Zippo, is that the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.” 130 F. 3d at 419 (citation and internal quotes omitted).
In its Panavision decision the following year, the Ninth Circuit did find the “effects test” applicable, reasoning in part that the defendant’s knowledge of harm to the plaintiff from its commercially oriented cybersquatting activities could be imputed from the fact that Panavision’s “principal place of business was in California, and the heart of the theatrical motion picture and television industry is located there.” Panavision, 141 F. 3d at 1321. From Panavision, then, this “heart of the industry” analysis found its way into the Pavlovich decision now under review: “Pavlovich also knew that the motion picture industry is centered in California, and that the computer and telecommunication industries have a substantial presence in California.” At least one thing that sets the Pavlovich scenario apart from the “industry effects” cases, however, is the lack of the sort of pecuniary motive highlighted in Cybersell and present in Panavision. Another thing missing is any activity approximating the physical, spatial equivalent of “firing a rocket” — an analogy suggested by California Supreme Court Justice Baxter during oral argument in Pavlovich.
The “rocket” question posed by the Court — say a defendant launches a rocket from an eastern state, headed generally westward, and it strikes California; is there jurisdiction in California over the defendant? — points up the shortcomings of the Calder “effects test” when the conduct at issue is posting information on the Web. The “effects test” is, by definition, spatial: it asks, “Where is the focal point of the activity and of the harm suffered?” In contrast, and as Dr. David Weinberger has examined at length in his book Small Pieces Loosely Joined, the Web, by design and implementation, perhaps more appropriately is considered an entirely non-spatial arrangement. It does not have geography and locations. It creates instead a potential and perpetually fluid connection between each and every one of its millions of connected nodes. Posting on the Web is thus a far less directed activity than, for example, placing a phone call or sending any kind of mail or fax. The actor is not initiating contact with a particular place; he or she is creating the possibility of contact with all places. The “effects test,” if it is to have any meaning, must require something more specific, and must ultimately be tailored by our courts (or perhaps our legislatures) to set firmer limits on jurisdictional reach where activities on the Web are concerned. As the Calder decision put it, California jurisdiction over Florida residents was proper because of conduct calculated to cause injury in California. The kind of conduct involved in the Pavlovich case — where information is simply made available to any user of the Web — can satisfy that test only by concluding the mere accessibility of a site within a forum state equates to purposeful activity there. The universal jurisdiction that would flow from such a conclusion is neither good policy, nor good law.