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internet law

Submitted by boden-davidson on Thu, 2010-02-04 15:09
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  1. jurisdiction in cyberspace
    1. key: cyberspace is borderless!
    2. jurisdiction in general [real-world background]
      1. general
        1. present in the jurisdiction, bulk of activity
      2. specific
        1. purposeful availment: does the claim arise from the forum-related activities?
        2. limited by burden on out-of-staters, but if it is possible to show that the defendant purposefully availed themselves of the forum, then jurisdiction will be had
        3. minimum contacts and internet commerce
    3. cases deal with jurisdiction based on information posted online
      1. development through cases: passive vs. active sites…
      2. but does not work with torts like libel and slander – jurisdiction lies where the harm is felt, “effect-test” jurisdiction [Caldwell] – except problems arise in the international context
    4. cyberspace as its own forum / jurisdiction
      1. what level of posting to subject to jurisdiction?
      2. “data havens” to worldwide jurisdiction
      3. is there a possible middle-ground?
        1. level of interactivity?
        2. location of server? [not valid, server could be anywhere]
  2. conflict of laws
    1. judgment enforcement
    2. cross-border issues
  3. contractual choice of law and forum
    1. choice of law and forum
      1. generally, choice of law and forum clauses in a contract will be deemed enforceable [unless unreasonable, i.e., not reasonably related to the transaction]
    2. arbitration
      1. arbitration clauses are nearly uniformly enforced – the only way to avoid an arbitration clause is to show that a contract was not formed under state law
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