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«I. INTRODUCTION We often hear what the Internet can do for us. We should also think about what the Internet can do to us.' An amalgam of ...»

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96. Id. (quoting QUE'S COMPUTER AND INTERNET DICTIONARY 554 (6th ed. 1995)).

97. See Reno v. ACLU, 521 U.S. 844, 851 (1997).

98. See infra notes 100-139 and accompanying text.

99. See supranotes 72-75 and accompanying text.

100. 937 F. Supp. 161 (D. Conn. 1996).


Summer 2005] incorporated in nor conducted business in Connecticut on a regular basis.' ° The plaintiff company sued over the defendant's use of a trademark name belonging to the plaintiff."2 The U.S. District Court for the District of Connecticut applied Connecticut's long-arm statute to the defendant Web site owner, holding that the owner "purposefully availed itself of the privilege of doing business within Connecticut. '13 The federal district court in Inset Systems based its holding on the notion that a Web site is analogous to a print, television, or radio advertisement and becomes more powerful due to the fact that it is continually accessible'." The court made its ruling without evidence of the number of Connecticut users who accessed the site in question; instead, the federal court assumed that thousands of Connecticut users could access the site.0 5 Thus, it allowed for Connecticut's invocation of personal jurisdiction over the defendant Massachusetts site owner. 0 6 In the years following the Inset Systems decision, a handful of courts have adopted a similarly broad standard.0 7 At the same time, a growing number of courts have become critical of the Inset Systems approach,'0 8 and many have opted instead for the more narrow approach found in Zippo ManufacturingCo. v. Zippo Dot Com, Inc.' 9

2. The Sliding Scale Approach of Zippo ManufacturingCo. v. Zippo Dot Com, Inc.

In contrast to the broad, expansive approach to Internet-based personal jurisdiction found in InsetSystems, the federal district court for the Western District of Pennsylvania developed a "sliding scale" approach in the case of Zippo Manufacturing Co. v. Zippo Dot Corn, Inc."0 Zippo Manufacturing involved a dispute over a Web site name between the manufacturer of Zippo cigarette lighters and the owner of a Web site that sold subscriptions to an internet news service."

101. Id. at 162-63.

102. Id. at 163.

103. Id. at 165.

104. Id.

105. Id.

106. Id. The fact that the court in Inset made its ruling despite a lack of evidence regarding the number of users who accessed this particular site provided some of the grounds for criticism and rejection of this approach.

See infra note 108.

107. See Telco Communications Group, Inc. v. An Apple a Day, Inc., 977 F. Supp. 404,405-07 (E.D. Va 1997) (holding that Virginia jurisdiction was proper in a defamation suit against Web site operators who posted negative press releases about the plaintiff); Maritz, Inc. v. Cybergold, Inc., 947 F. Supp. 1328, 1332-34 (E.D. Mo.

1996) (upholding personal jurisdiction in a trademark action against Web site operators where users signed up for electronic mailboxes where they were to receive targeted electronic advertisements); State ex rel. Humphrey v.

Granite Gate Resorts, Inc., 568 N.W.2d 715,720-21 (Minn. Ct. App. 1997) (upholding Minnesota jurisdiction in a consumer fraud action against Web site operators who claimed to offer legal sports gambling online), aff'd, 576 N.W.2d 747 (Minn. 1998).

108. See, e.g., Hy Cite Corp. v. Badbusinessbureau.com, L.L.C., 297 F. Supp. 2d 1154, 1159 (W.D. Wis.

Morantz, Inc. v. Hang & Shine Ultrasonics, Inc., 79 F. Supp. 2d 537, 540-41 (E.D. Pa. 1999); JB Oxford 2004); S.

Holdings, Inc. v. Net Trade, Inc., 76 F. Supp. 2d 1363, 1367 (S.D. Fla. 1999); Millennium Enters., Inc. v.

Millennium Music, L.P., 33 F. Supp. 2d 907, 922 (D. Or. 1999); Hasbro, Inc. v. Clue Computing, Inc., 994 F.

Supp. 34, 41-42 (D. Mass. 1997); see also Sublett, 2004-NMCA-089,T1 26-29, 94 P.3d at 851-53.

109. 952 F. Supp. 1119 (W.D. Pa. 1997); see infra text accompanying notes 110-129.

110. 952 F. Supp. at 1123-24.

Ill. ld. ati! 21.

NEW MEXICO LAW REVIEW [Vol. 35 The court in Zippo Manufacturingcame to the conclusion 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." " 2 The court identified the existence of a "sliding scale" that places Web sites on a continuum from active to passive.l"3 An active Web site allows users to enter "into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files.""' 4 On the other hand, a passive Web site is one in which information is merely made available to interested parties.115 Lying between these two ends of the continuum are "Web sites where a user can exchange information with the host computer... [and] the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site."' 1 At both the state and federal level, many jurisdictions have adopted the Zippo Manufacturing "sliding scale," or a similar test, in their attempts to resolve issues surrounding Intemet-based personal jurisdiction." 7 The states that have followed the Zippo Minnesota," 9 Ohio, 120 Manufacturing approach include California,' Pennsylvania, 12' and Texas.1 2 The federal appellate courts ofthe Third,2 3 Fourth,' 24

112. Id. at 1124.

113. Id.

114. Id.

115. Id.

116. Id.

117. See, e.g., Cybersell, Inc. v. Cybersell, Inc., 130 F.3d414,419-20 (9th Cir. 1997) (finding that California jurisdiction was improper in a trademark action against operators of a Web site that had advertised construction services); Conseco, Inc. v. Hickerson, 698 N.E.2d 816, 820 (Ind.Ct. App. 1998) (holding that Indiana jurisdiction was improper in a trademark action against a Web site operator whose site shared information about the plaintiff corporation).

118. Nam Tai Elecs., Inc. v. Titzer, 113 Cal. Rptr. 2d 769, 776-78 (Ct. App. 2001) (dismissing libel action where messages posted on a California-based Internet message board were not found to be directed at the forum state of California), overruledby Pavlovich v. Superior Court, 127 Cal. Rptr. 2d 329 (2002); Jewish Def. Org., Inc.

v. Superior Court, 85 Cal. Rptr. 2d 611, 620-23 (Ct. App. 1999) (denying jurisdiction in defamation suit where court determined that defendants' Web posts constituted neither minimum contacts nor purposeful availment).

119. Croix Retail, Inc. v. Logiciel, Inc., No. A03-220, 2003 Minn. App. LEXIS 1168, at *7-18 (Sept. 23, 2003) (upholding specific personal jurisdiction under five-factor test, finding that the nature, quality, and quantity of defendant's electronic contacts, among other things, supported jurisdiction).

120. Edwards v. Erdey, 770 N.E.2d 672, 679 (Ohio 2001) (upholding jurisdiction based upon the level of interactivity and the commercial nature of the exchange of information that occurred on Web site between plaintiff and dcfendants).

121. Efford v. Jockey Club, 796 A.2d 370,374-75 (Pa. Super. Ct. 2002) (finding improperjurisdiction where defendant's Web site fell into the "middle ground" of the sliding scale).

122. Gessmann v. Stephens, 51 S.W.3d 329, 339 (Tex. Ct. App. 2001) (holding that appellant's Web site, which posted appellant's name, logo, and e-mail link, were insufficient facts upon which to base specific jurisdiction).

123. Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 451-52 (3d Cir. 2003) (mandating consideration of Internet and non-Internet contacts beyond company's Web site that might suffice to bring defendant within jurisdiction).

124. ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 714-15 (4th Cir. 2002) (holding no jurisdiction where the court incorporated an "intentionality" requirement when fashioning a test for personal jurisdiction in the context of the Internet).


Summer 2005] Eighth, 1 6 Ninth,'2 7 and Tenth 128 Circuits have also adopted the Zippo Fifth, 2 Manufacturingapproach to one degree or another.'2 9 Jurisdictionin New E. Determining an Approach to Internet-BasedPersonal Mexico Prior to the Sublett opinion, the federal district court for the District of New 3° Mexico applied a very similar standard to that found in Zippo Manufacturing.1 In 3 the court "analogized various... Internet Inc. v. Kotler, OriginsNaturalResources, activities to more established forms of communication and information dissemination in order to create a working standard very similar to" the Zippo Manufacturing sliding-scale approach.' 32 According to the court in Origins NaturalResources, analyzing personal jurisdiction principles in the context of the Internet requires no more of a departure from the traditional requirements of minimum contacts and due process than had previous advances in communication or broadcast technology, including the ascendance of the telegraph, telephone, fax, television, and radio.' 33 The court in OriginsNaturalResources compared passive postings of information on the Internet to "magazine or interstate billboard advertising."1 34 Determining the target of Internet postings presents a number of problems, as the global reach of the Internet could potentially subject defendants who post information on the Web to virtually every jurisdiction in the world. 135 The court felt that this question was not as problematic when applied to Web sites that are clearly "interactive," which the court analogized to telephone or mail communications.' 36 In either scenario, the court in Origins Natural Resources essentially declared that the "purposeful availment" analysis remains the dominant inquiry in questions pertaining to jurisdiction.'37 Analyzing a defendant's prospects for being subjected

125. Revell v. Lidov, 317 F.3d 467, 476 (5th Cir. 2002) (dismissing defamation action where author's Internet bulletin board post neither referred to nor was directed at plaintiff's forum state); Mink v. AAAA Dev.

L.L.C., 190 F.3d 333, 336-37 (5th Cir. 1999) (denying jurisdiction where court found a Web site to be a passive advertisement incapable of handling business orders online).

126. Lakin v. Prudential Sec., 348 F.3d 704, 712-14 (8th Cir. 2003) (denying specific jurisdiction that was based in part on Internet contacts).

127. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 419-20 (9th Cir. 1997) (finding that defendants' use of an Internet Web page name was passive and that defendant had conducted no commercial activity in Arizona;

thus, their contacts with Arizona were insufficient to establish jurisdiction).

128. Soma Med. Int'l v. Standard Chartered Bank, 196 F.3d 1292, 1297 (10th Cir. 1999) (finding that defendant did not engage in "substantial and continuous local activity" through its Web site for purposes of jurisdiction).

129. For example, some courts have applied the Zippo rationale to questions of specific jurisdiction but have declined to apply it to a general jurisdiction analysis. See, e.g., Lakin, 348 F.3d at 710-11; Revell, 317 F.3d at 470-71.

130. Origins Natural Res., Inc. v. Kotler, 133 F. Supp. 2d 1232, 1236 (D.N.M. 2001) (distinguishing Web sites that are "interactive" from those that are not). Note that, despite the similar reasoning employed in both opinions, Origins NaturalResources does not cite Zippo Manufacturingas persuasive authority.

131. 133 F. Supp. 2d 1232 (D.N.M. 2001).

132. Mark S. Barron, A New Frontier Long Arm Jurisdiction:New Mexico's Search for Minimum for Contacts in Cyberspace, COM. BREAK, Winter 2004, at 7.

133. Origins NaturalRes., 133 F. Supp. 2d at 1236.

134. Id.

135. See Barron, supra note 132, at 7.

136. Origins NaturalRes., 133 F. Supp. 2d at 1236.

137. See Barron, supra note 132, at 7; see supra text accompanying notes 38-41.

NEW MEXICO LAW REVIEW [Vol. 35 to the courts of a given jurisdiction, as well as the extent to which the defendant benefits from the protections of thatjurisdiction's law, was held to be a determinant analysis that must be done on a case-by-case basis. 3 ' Following OriginsNatural Resources, the first New Mexico state court decision to touch upon the concept of the Internet as applied to personal jurisdiction was Sublett v. Wallin.,


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