Ready, Aim, Defend: Pavlovich v. Superior Court Nears The Finish

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.

Comment to the Senate Judiciary Committee about the proposed CBDTPA, submitted this date and also posted here

To the Committee and its Honorable Members:

I am an attorney in private practice in California. I have read the proposed CBDTPA and am troubled by its willingness to sacrifice broad public rights to narrow economic interests. We do not have the facilities to detain the multitudes who would violate the proposed legislation should it pass. Its efforts to preserve "the limitations on the exclusive rights of copyright owners, including the fair use doctrine" - and to restrict security measures that would bar even perfectly legal copying - appear half-hearted and insufficient. And, leaving fair use considerations aside for a moment, seeking to prevent a crime by banning the means of carrying it out seems a strategy better suited to firearms than to consumer technology.

The following observations from writers Doc Searls and Dan Gillmor, respectively, capture some of my reservations about the bill:

"Napster and its successors are the listeners' workaround of the failed radio industry...Other workarounds are bound to follow, over and over, until the entertainment industry starts serving fully empowered customers or gets replaced by something that will. Protective legislation will only make the process happen faster."

"Policy is not going to stop technology from evolving. It can only make criminals of more and more people who are going to use it no matter what her [Hilary Rosen's] clients say."

The bill, if passed, will spawn an Orwellian future where citizens sequester, hoard and construct their own Rube Goldberg versions of technology circa 1998-2002, which will be vastly preferable to the eviscerated offerings thereafter available on the consumer market. It will restrain trade by requiring technology manufacturers to take ten steps back after taking two steps forward. There are other, less onerous means of accomplishing the bill's goals that do not trample on progress and individual freedoms. I respectfully urge Congress to refrain from enacting the proposed legislation.

Law Meets Blog: Electronic Publishing Comes Of Age

Although the World Wide Web was born thirteen years ago, lawyers and courts continue to struggle with their online identities. Most recognize the value and potential of the Web as a communication tool - email is ubiquitous, and access to legal information through public and private outlets has never been greater.

Judges and lawyers, however, are not programmers or Web developers, and for a legal institution this reality can halt the Web's potential dead in its tracks. While court Web sites provide ever-increasing quantities of raw data about cases, decisions and dockets, they offer little in the way of interaction or personalized assistance.

And, while some attorney and law firm sites are more useful than others, most continue to suffer from the same problem they have had all along: on the whole they are glorified brochures and telephone directories, devoid of up-to-date information geared toward concrete issues and client problems.

Enter the weblog, and things begin to look very different. Weblogs, also known as "blogs," are online publications which can include links to newstories, opinion pieces and commentary. Because they can be updated throughout the day, blogs enable immediate, virtually effortless Web publishing. With a minimum of technical know-how, a weblog author - or "blogger" - can publish and maintain an ongoing, informative dialogue with an unlimited number of readers. Weblogs take the Internet to the next step by leapfrogging conventional publishing roadblocks. When applied to the legal field, they present an irresistible channel for moving beyond the realm of operational details into that of informed perspective. Welcome to Communication v. 2.0.

Taking It To The Streets
Weblogs have been around for a long time, in Internet years. The first weblogs appeared in the early 1990's, and were collections of links and information the authors found worthy of compiling or categorizing as they journeyed around the World Wide Web. Blogs were much like other Web sites in one important way: creating and publishing one required skills and resources that legal professionals may lack, such as proficiency in hyper-text markup language (the basic language of the Web) and access to a Web server, just for starters.

In the summer of 1999, blogging became more accessible and popular when several free, build-your-own weblog tools launched, including Blogger from Pyra Labs. These tools provided a straightforward interface - anyone who can type can use Blogger - as well as all the behind-the-scenes support necessary to maintain and update a weblog on its own or as part of another site. As the result, weblogs have flourished and spread. Blogger now powers some half-million sites, and applications from others like UserLand Software and Movable Type also are popular.

Today, blogs come in all shapes and flavors. Some are personal journals, others have a more journalistic slant, and some combine the two. During the Winter Olympics, for example, security guard "b-may" drew thousands of readers with his timely and humorous event-side take on the games. But blogs are not just for individuals. Any site can use a weblog, including those maintained by businesses or branches of the government.

Whatever their principal purpose, all blogs filter information and archive it in an enduring chronological manner. Because updating is immediate and seamless, the information can be extremely timely. The format also encourages conversation and exchange in ways a static Web site cannot. A blog can have multiple authors, and readers can comment on the posts, ask questions and receive prompt and specific responses.

Internally, organizations maintain blogs to bring workers together and aid collaboration. On the public Web, blogs provide fascinating, witty, practical or utterly useless information - all remarkably current. Many blogs have loyal followings and are visited thousands of times a day. The major search engines index weblogs regularly, and a number of search tools exclusively analyze news sites and weblogs. More and more, those seeking topical information online are finding it on blogs.

The Next Phase
It should come as no surprise that those motivated to earn their living in the legal field also are motivated to make use of weblogs. Such people tend to have education, expertise in controversial, confusing or emergent areas, and years of experience at their craft.

Law librarians have been quick to recognize and exploit weblogs as a way to share their knowledge. Steven Cohen, librarian for a large New York firm, blends the latest in library resources with humor and industry news in his "Library Stuff" blog, while Cindy Curling of the law firm of Fried Frank Harris Shriver & Jacobsen law firm keeps Washington, D.C. law librarians informed about weblog developments, and notes that while "blogs have huge potential for more interactive, collaborative applications," at the moment, "there are not enough experts writing professional blogs."

The gap noted by Curling will be closed by the lure of speedy, attractive and interactive Web publishing, as the blogs of several legal scholars, practitioners and students already demonstrate.

Law professor Glenn Reynolds is a blogger ("InstaPundit;" University of Tennessee), as is his fellow academician David Sorkin ("Law Blog;" The John Marshall Law School).

Blogs are springing up on the practitioner side as well. Take, for example, "Ernie the Attorney" by Ernie Svenson, "Law And Everything Else" by Burt Hanson, "Organized Anarchy" by Chuck Hartley and "Ipse Dixit" by Dodd Harris). Students at Yale Law School have launched "LawMeme" - a blog about telecommunications, Internet and intellectual property law - in connection with the school's Information Society Project. Even future law students are getting into the act: Larry Staton Jr. will commence his legal studies at Case Western this fall, which should provide ample fodder for his "Staton.Blog," a running commentary on current issues in law, economics and technology.

As more and more individuals within the legal field begin to blog, legal institutions will find themselves wondering whether to lead, follow or get out of the way.

Yale's "LawMeme" is a good example of how a weblog sponsored by an institution can achieve many goals that a Web site may strive for, but will be hard-pressed to attain unless it adopts this kind of technology. LawMeme's weblog format gives the students a hassle-free way to exercise their intellects and publish their work. It gives a public, yet human, voice to Yale Law School and its Information Society Project, while emphasizing the expertise of those bodies through post after well-thought-out, timely post. Finally, it opens an immediate dialogue - a student's February 26, 2002 analysis of a potential copyright violation by a video game manufacturer, for example, generated over two-hundred thirty responses.

After examining LawMeme, it is easy to see why other law-related Web sites will want to embrace weblogs. Take law firms, for instance. Much as private firms have hoped to draw visitors to their Web sites in search of useful, interesting or current legal information, they have failed.

Why?

Because that kind of information isn't typically found there.

Now, consider what happens when lawyers within the firm begin electronically publishing articles, commentary and current interest updates as readily as the student-authors of LawMeme. The site goes from static to dynamic, from one-way to interactive, and in the process it becomes a powerful marketing tool. It stops describing the firm's expertise, and begins palpably demonstrating it.

And, just as weblogs can help lawyers and firms gain standing and clients, they likewise can help courts and bar associations better serve their constituencies.

Augmenting a court's "Frequently Asked Questions" page with a weblog could help ensure understanding and compliance with court policies and procedures, thus minimizing phone inquiries and red-tape. West Virginia's Supreme Court of Appeals agrees, and provides its recent opinions and other court information in weblog format. A bar association weblog could let those in need of representation or other practical advice obtain guidance from knowledgeable practitioners, or could help foster collegiality and exchange among bar members.

The best information is the precise thing you need at the precise moment you need it. As weblogs become more prevalent, they will permit lawyers and legal institutions deliver the best information, by allowing them to share knowledge quickly, efficiently, responsively and personally.

Courtyard Bazaar At The Ivory Tower
In the vast wilderness of undifferentiated legal details, think of weblogs as the professional guides. Individual bloggers will continue to provide insight, perspective, wit and opinion. (Note to California appellate Justices Bedsworth and Gilbert: "A Criminal Waste Of Space" and "Under Submission" are eminently bloggable.) Additionally, firms, courts, law schools and other legal institutions will unleash the knowledge and experience of the individuals within them by adding weblogs to their Internet offerings.

Those blogs will gather, collate, filter and present information of genuine interest and necessity to legal consumers and the public at large, helping them get the answers they need, when they need them. As Emerson observed, "imagination is not a talent of some men, but is the health of every man." Weblogs both harness the imagination, and set it free.

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.