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This paper is part of a Cyberspace Law Seminar1 project that places the students in the role of attorneys in a law firm which represents hypothetical corporation, Global Telecom, Media and Electronics, Inc. (GTME) in its proposed business ventures in Asia.
For the purpose of this paper, GTME wishes to do business in India and requests legal advice.
The theoretical framework of this paper hypothesizes a request by India's government for a legal analysis on issues of jurisdiction that arise in the context of the Internet.
The purpose of this paper is to demonstrate a familiarity with Asia's growing economic opportunities, while being conscious of legal doctrine and policy being developed in the United States. Analyzing India's law is beyond the scope of this paper, due, in part, to its relative unavailability to a student researching in the United States. It is, however, assumed that India faces the same need to develop a sufficient legal regime to address the issues the Internet poses to existing jurisdictional law.
Some experts assert that the information sector, most broadly defined, makes up nearly half of the world's entire economy.2 Its continuous growth has created a wide variety of business opportunities, including significant economic possibilities in Asia. In particular, India's growing economy offers a number of lucrative opportunities for Internet Service Providers (ISPs). But to profit from India's expanding potential ISP market, requires an understanding of the legal implications involved in establishing an Internet service provider. GTME's business endeavor in India could prove extremely profitable.
Initially, it becomes extremely important to have, at the very least, a cursory understanding of relevant facts about India, including the more important cultural aspects. Companies attempting to do business in a foreign country need to be informed of the culture in order to be successful. Expecting a country like India to yield to the United States' cultural dictates is unrealistic, and could prove to be an unnecessary risk for international firms. Understanding the needs and the persuasions of the Indian people is a critical first step to developing a successful ISP.
India is a culturally complex country, due in part to the diversified religious persuasions of its population. Part of India's socio-religious framework is premised on a caste system that creates divisive influences, which, in turn, reflect how individuals living in this society view one another.3 The "Brahmans" are at the pinnacle of this hierarchy, while the "Untouchables" man the base. Privilege and prejudice, respectively, operate as a significant factor in the interrelationships between the people relegated to different castes. Despite these significant differences, India is the world's largest functioning democracy.
The primary religion in India is Hindu, which approximately 80% of the population practices in some form or another.4 Close to 60% consider themselves strict Orthodox Hindus. Other major religions, Muslim, Christianity and Sikh are also found throughout India.5 Hindi is the official language of India, with English acknowledged as an associate language, recognized throughout its educational system. Just over half of the people in India are literate, despite the fact that education is theoretically compulsory in 23 states.6 India, does, however, benefit from a highly skilled labor market.
India has a population of near one billion people, making it the second most populated country in the world (second only to China). It has a land area of 1,222,243 sq. miles.7 This, in effect, creates a huge potential market for information technology.
However, only 26% of India is currently urbanized, leaving nearly 75% of the population involved in agriculture and various sectors of the informal economy.8 Unfortunately, India's large rural population is without a substantial telecommunication infrastructure. A direct result of this low-level urbanization is that businesses have been reluctant to invest large amount of capital into rural areas.
The telecommunications industries' hesitancy to develop the rural areas in a significant manner is illustrated by the fact that there is only one telephone for every 112 people. This can, however, be overcome by focusing GTME's resources on the telecommunications infrastructure that is already in place throughout India. Despite the evident infirmities in the rural areas, India does have "one of the largest" telecommunications infrastructures in Asia.9
India is a union of states and territories, each of which have regional capitals with significant telecommunications capabilities and potential. By focusing primarily on the five largest cities in India, along with the regional capitals, GTME theoretically could provide Internet services to nearly 120,000,000 people. The four-point plan contained in this proposal includes tapping into major links (servers) in Madras and Bangalore in the South, Bombay in the West, New Delhi in the North, and finally Calcutta in the East.10
GTME could set up its corporate headquarters in Bangalore, taking advantage of the unique opportunities it offers for technologically oriented businesses. Bangalore is considered to be India's high-tech capital, and has lured a host of international firms.11 Bangalore is home to India's largest research and engineering center, the Indian Institute of Science.12 The Indian Institute of Management, a top business school in the country, along with most of India's nuclear and space research operations, are also located in Bangalore.13 Apart from offering high quality educational facilities, Bangalore also supplies much of India's domestic computer market and consequently would provide a strategic place of business for launching an advertising campaign highlighting GTME's prospective Internet services. Bangalore also has a highly skilled labor market that is comparatively inexpensive, in relation to the technologic-based services it provides.14 Recently Texas Instruments Inc., Motorola Inc., Hewlett-Packard Co., Apple Computer, Sun Microsystems Inc., and Intel Corp. have established operations in Bangalore either in independent or joint domestic ventures.15
With India's opening up of its markets, the availability of information technology will prove to be critical in its success.16
AT&T and British Telecom have been working with the Indian government trying to improve the current telecommunications infrastructure. Since this partnership began, India has experienced an 8% average annual growth in its telecommunications industry. This rate of growth is expected to keep increasing during the next five years.17 Global corporations are responding to this growth by augmenting their own efforts to discretely slip past their competitors in the expanding Indian Market. IBM, one of the first computer manufacturers to enter India, currently holds the largest share of the computer market in India among foreign investors, and has teamed up with the Indian corporation TATA Industries.18 General Electric, Finland's Nokia, and Compaq Computer Corp. also have initiated joint ventures with various India-based corporations. The powerful Indian corporation Videsh Sanchar Nigam Limited, has already established ties with the newly arriving, as well as the pioneer "global firms."19
With the telecommunications participation these global corporations are providing in India, GTME could do as well, by following the lead these telecommunications giants have forged.20
The Indian government is acutely aware the interest foreign competitors have in its market. The government exercises a significant degree of control over these ventures, undoubtedly in an effort to safeguard domestic businesses against the potential competitive burdens placed on them by large international firms.{EN} While India's markets are open to GTME as an international firm, it still must be conscious of India's economic suspicions.
Furthermore, a new concern that presents itself both in the United States and in India, is the proliferation of new information technologies and the issues they may pose within the existing legal paradigms. For example, interesting legal difficulties arise in defamation, in which the "community" in which the injury occurs is dramatically redefined by the Internet. No longer are injurious remarks or print confined to news stands or pre-defined circulation routes, but rather are widely accessible to anyone adept in the use of his/her computer. Similarly, obscenity and its regulation has the potential for posing problems in defining the appropriate "community standards" to analyze, in a court's determination of what is obscene.
One aspect, and the focus of this paper, both the United States' and India's legal systems must address is the application of jurisdictional law in a cyberspace (virtual) community. This is of particular importance to those who wish to engage in Internet-related activities, such as GTME's proposed ISP.
In the United States, a court's jurisdiction over a case derives from a geographically-based presence, or activities directed at a physical location. The issue, for purpose of jurisdiction, is whether a geographically tethered doctrine can be modified and applied to transactions and persons in "cyberspace?"21 As one commentator noted, "[t]hese new relationships strain legal principles and categories that currently direct judicial power over individual action, either civilly or criminally."22 The traditional notions of jurisdiction can be found in the Supreme Court case, International Shoe Co. v. Washington.23 As will be demonstrated, the courts, while acknowledging some of the challenges the Internet poses the law of jurisdiction, have been content, for the most part, to resolve these issues with the application of well established judicial constructs.
International Shoe shifted the focus from the legal fiction of the defendant's actual presence in the jurisdiction, and replaced it with a substantive inquiry into whether subjecting a non-resident defendant to personal jurisdiction comports with Due Process.24 International Shoe held that a court may exercise personal jurisdiction over an individual who has "minimum contacts" with the forum state, so long as the exercise of jurisdiction is consistent with traditional notions of "fair play and substantial justice."25 Other cases have expanded upon the "minimum contacts" standard enunciated in International Shoe by refining the judicial rendering of "minimum contacts" in various contexts.
World Wide Volkswagen Corp. v. Woodson26 addressed the issue on what grounds the courts will infer the establishment of minimum contacts. The Supreme Court in World Wide Volkswagen refined its earlier opinion in Hanson v. Denckla27 by concluding that an important factor to be considered in evaluating "minimum contacts" was whether a corporation "purposefully avails itself of the privilege of conducting activities within the forum state,"28 and whether a non-resident defendant could reasonably anticipate being subject to suit in the forum state as a result of his acts.29
The Court's determination of what constitutes sufficient minimum contacts to warrant invoking personal jurisdiction in International Shoe and its companion cases, have practical implications for conflicts that arise between parties regarding their use of the Internet. However, the court's application of existing jurisdictional law provides an imperfect analysis. Previous Supreme Court cases provide some basis for analyzing jurisdiction in situations not based solely on physical presence in the forum state. In Burger King Corp. v. Rudezwitcz30 the court noted that the exercise of jurisdiction over an individual could not be avoided "merely because the defendant did not physically enter the forum state."31 The Court asserted that when a defendant has purposefully directed its activities to a forum state and caused injury to an individual or entity, the state's invocation of jurisdiction comports with its Due Process obligations.32 The so-called "effects test" established in Burger King has recently been applied to the Internet and demonstrates the difficulty in its' application.33 However, the court's resolution of controversies involving the use of the Internet, to some extent, mirror the application of traditional minimum contacts jurisprudence.
In Hanson v. Denckla the Supreme court stated that "[a]s technological progress has increased the flow of commerce between States, the need for jurisdiction has undergone a similar increase."34 This statement seems particularly valid in the context of the Internet, particularly given the accessibility of many "jurisdictions" simply by logging onto a computer.
In Zippo Manufacturing Co. v. Zippo Dot Com, Inc.,35 suit was brought by a plaintiff who alleged that the defendant corporation infringed on its registered trademark through its use of an Internet domain name. The defendant, Dot Com, was a corporation headquartered in California and obtained the exclusive right to the use of the domain names "zippo.com," "zippo.net", and "zipponews.com."36 Dot Com solicited customers over the Internet and provided merchandise in return for payments. Individuals wishing to take advantage of Dot Com's services, transferred their credit cards numbers through the Internet.37 The jurisdictional issue first arose when Zippo Manufacturing, a corporation based in Pennsylvania, filed suit there against the California-based Dot Com for its alleged infringement. The question, of course, was the propriety of a Pennsylvania court assuming jurisdiction over this California firm. The court, while struggling through the novel jurisdictional issues, found that most of Dot Com's contacts with Pennsylvania occurred via the Internet.38 The court analyzed the jurisdictional issue under the traditional rubric established in International Shoe and World-Wide Volkswagen by inquiring into "minimum contacts" and "purposeful-availment". The court held that since Dot Com had 3000 subscribing customers in Pennsylvania, subjecting it to its jurisdiction comported with both Due Process and the Pennsylvania Long Arm Statue.39 The court found that Dot Com was doing business over the Internet as opposed to a passive user. This was evidenced by the commercial nature of Dot Com's contacts with Pennsylvania.40 The court, however, did not provide a bright-line rule for distinguishing what constitutes sufficient contacts to justify exercising jurisdiction over Internet users.
In Bensusan Restaurant Corp. v. King,41 an operator of a New York night club alleged that the defendant infringed on his trademark by purportedly using the trademark to promote his own business similarity named over the Internet. The Court held that subjecting the defendant to personal jurisdiction violated his Due Process.42 The Court reasoned43 that the defendant merely maintained a passive web site, and did not purposefully avail himself of the benefits and protections of the state of New York.44 The Court remarked,
King, like numerous others, simply created a Web site and permitted anyone who could find it to access it. Creating a site, like placing a product into the stream of commerce, may be felt nationwide -- or even worldwide -- but without more, it is not an act purposefully directed toward the forum state.45
However, the question still remains as to what degree of Internet interaction between entities is required to mandate the exercise of personal jurisdiction. Or for our purpose, how much business may a corporation like GTME transact via the Internet without subjecting itself to suit in a foreign jurisdiction?46
Some courts have analyzed the issue with the traditional concepts of presence while others have made a concerted effort to inquire into the specific context of the Internet interaction. For example, the Sixth Circuit's opinion in Compuserve, Inc., v. Patterson47 provides an insightful analysis regarding the degree of Internet interaction necessary for a court's assertion of personal jurisdiction. The record disclosed that the defendant, Patterson, entered into a "shareware" contract with Compuserve, a corporation based in Ohio. The Sixth Circuit found that the defendant, though acting from a foreign jurisdiction, was knowingly engaged in repeated transmission of computer files via the Internet to Compuserve. Subsequently, the court concluded that the non-resident defendant had sufficient contacts with Compuserve to justify exercising personal jurisdiction over him and subjecting him to suit in Ohio.48 The Sixth Circuit acknowledged that Patterson purposefully engaged in a contractual relationship with Compuserve to market his product and considered this to be a significant factor, though not entirely dispositive, in determining the jurisdictional issue.49 The elements of contact, on-going relations, and a for-profit enterprise are factors that seem to distinguish Compuserve from Bensusan. That the court in Compuserve was able to make substantial distinctions between its exercising of jurisdiction and the Bensusan case suggests that traditional notions of "minimum contacts" could be sufficient. Of course, many cases fall in between the deceptively lucid boundaries imposed by both Compuserve's contractual justification and the Bensusan's court determination of "passive maintenance."
The Zippo Court asserted that when an entity intentionally engages in business with a foreign jurisdiction that a "[d]ifferent result should not be reached simply because business is conducted over the Internet."50 This principle appears to be consistent with the Sixth Circuit's result in Compuserve. However, the clear parameters established by the courts in Bensusan and Compuserve were called into question in Inset Systems, Inc. v. Instruction Set.51 In Inset Systems, the court was called upon to determine a jurisdictional issue involving a trademark infringement action involving the use of an Internet domain name. Inset sued Instruction, a Massachusetts corporation, in its home state of Connecticut.52 The defendants had created a Web site which contained the trademark registered by the plaintiff. Undoubtedly, this Web site was accessible to any adept computer user in Connecticut who had Web access. The court held, essentially, that the defendant corporation had adequate contacts with Connecticut, for purposes of the court's jurisdiction, as a result of its advertising through the Internet, which was readily accessible to 10,000 of Connecticut's residents.53 On its face, the type of activities warranting personal jurisdiction in Inset Systems seem to be remarkably similar to those that were found not to comport with Due Process in Bensusan, i.e., "passive maintenance" of a web site. Although, these cases are tenuously distinguishable, courts are being called upon to make difficult fact-based distinctions, where perhaps a new innovative legal doctrine could be developed to differentiate precarious ad hoc adjudications.
The court in Bensusan remarked that the plaintiffs had failed to put in "proof that any infringing goods were shipped into New York."54 By contrast, the plaintiffs in Inset Systems provided empirical data on the possible access of the Web site by the forum state's residents.55 Moreover, the close proximity of Connecticut and Massachusetts may have been an implicit, though imperious factor in Inset Systems. In Bensusan the alleged trademark infringement dispute involved a defendant domiciled in Missouri, and a plaintiff whose business operated and generated its good will through its trademark in New York. Furthermore, the court in Bensusan noted that it would take a substantial effort on the part of New York residents to access the Web, find the page in question, and consequently become confused concerning the legitimacy of the trademark, particularly when the alleged infringement occurred in Missouri.56
It is evident that the courts are looking into the totality of the circumstance when determining whether to exercise jurisdiction over individuals involved in Internet related activities. The court's inquires include determinations of the manner in which defendants have contact with their jurisdiction, the commercial or non-commercial nature of the contact, and the geographic proximity of the defendant and the forum state. The courts, while recognizing the problems the Internet poses to an appropriate understanding of traditional jurisdictional law, are content, for the most part, with analyzing the issue within the boundaries of the current legal framework. As is now apparent, the extent to which proximate cause issues or policy matters, including physical geography, will factor into jurisdictional issues is uncertain. The court in Inset Systems highlighted the fact that the plaintiff could carry its burden of proof that residents of its home state accessed the defendant's Web site.
However, the issue of what quantity of contacts are necessary to establish minimum contacts has been resolved in various ways. For example, in State v. Granite Gate Resorts, 57 the defendants residing in Nevada, moved to dismiss the case for lack of personal jurisdiction. The defendant corporation operated an on-line betting system called WagerNet.58 The defendant corporation argued that it did not have sufficient contacts with Minnesota to warrant being subject to suit in its courts. The defendants conceded that it could reasonably anticipate being sued in California, Oregon, Arizona and other western regional areas, but contended that 1,800 miles is far too great a distance for a Minnesota court to exercise personal jurisdiction.59 To say that the court was not impressed may be an understatement. Judge Connolly stated, "[t]he Defendant's attempt to hide behind the Internet and claim that they mailed nothing to Minnesota . . . and never advertised in Minnesota . . . is not sound in the age of cyberspace."60 In Granite Gate, unlike Inset Systems, the court did not explicitly consider physical geography, nor did it require empirical data to show that Minnesota residents actually accessed the defendant's Web site. For the court, it was sufficient that a logical inference could be drawn from the number of Minnesota residents with Web access.61 Although the court in Granite Gate seemed to avoid inquiries into physical geography or empirical evidence, nevertheless it relied on the holding in Inset Systems throughout much of its opinion. Moreover, the court in Granite Gate, while acknowledging the fact that the Internet raises a number of additional legal issues, stated that "[h]ere the Defendant's crossed the Minnesota borders through Internet advertisements. . .."62
Reasonable people can disagree whether it is appropriate for the courts to analogize to geography when addressing the application of jurisdiction over the Internet. Acknowledging, however, the fact that courts are engaging in this type of analysis is critical to understanding how to apply jurisdictional law to the Internet in the future, especially when faced with an every expanding base of access.
In, Maritz, Inc. v. Cybergold, Inc.63 the court held that actively soliciting customers for a mailing list created sufficient contacts to assert jurisdiction over a non-resident defendant in a trademark infringement action. This case is of particular concern for GTME's proposed Internet service. In Maritz, the defendant created a Web site for the purpose of advertising an upcoming Internet service.64 The Web site encouraged users to leave their electronic addresses (e-mail), assuring "visitors" that the defendant would forward them advertisements concerning their prospective service.65 The Maritz court, like the court in Granite Gate, found that residents in the forum state (Missouri) did access this Web site and this access was sufficient to establish "minimum contacts".66 Once again the courts seem willing to exercise jurisdiction over an individual who actively advertises over the Internet or derives business from its use.67
Thus, according to jurisdictional law being developed in the United States, GTME's planned advertising of its proposed ISP from Bangalore, in theory could subject it to any jurisdiction in any forum in which its residents are empirically shown to have accessed GTME's web site. If India adopts the approach being taken by the courts in the United States this could be a substantial risk. A carefully calculated risk may be worth taking, given that some courts have refused to subject individuals to personal jurisdiction when their contacts to the forum state can be described as tenuous at best.
In Pres-Kap, Inc., v. System One, Direct Access, Inc.68 the plaintiffs brought a cause of action for breach of their lease agreement which provided them with critical information, important in airline ticket sales business. The court found that the defendant's only contacts with the plaintiff's home state (Florida) were forwarding payments to Florida. The court also found that, as it happened, the information database the defendant accessed was located there.69 It held, however, that these contacts with Florida were insufficient by themselves to establish adequate minimum contacts required under a Due Process analysis.70 The court stated, "[i]t is settled law that an individual's contract with an out-of-state party alone can [not] automatically establish sufficient minimum contacts."71 The court simply refused to inquire into whether a non-resident defendant actually knew that the computer database they were accessing is housed in a particular locality.72
The court's approach in Pres-Kap is logically consistent, in part, due to the fact that it is unlikely that courts can reasonably expect individuals to keep themselves informed on these highly technical and largely irrelevant matters concerning the location of even frequently accessed databases. The court in Pres-Kap recognized the problem with subjecting an individual or a business to suit in the state in which they make their payment or access the database they use. The court concluded that "[s]uch a result, in our view, is wildly beyond the reasonable expectations of such computer-information users," in determining that it does not comport with International Shoe's notion of fair play and substantial justice.73
This principle, however, is not universally accepted. One judge dissented in Pres-Kap, on the grounds that the defendant was on notice because of having continuously sent the payments to the plaintiffs in Florida for over nine years.74 Although the majority in Pres-Kap obviously has a more legitimate argument,75 this case exemplifies the fact that the courts are responsible for analyzing Internet jurisdiction on a case-by-case basis.
Other examples of cases of first impression upon the courts involve tortuous conduct over the Internet. This proves to be an interesting inquiry, considering the enormous amount of communication that occurs over the Internet.
The Supreme Court established the "effects test" for asserting specific jurisdiction in Calder v. Jones.76 The Calder case involved a defamatory article printed in a national magazine. The Court in Calder emphasized that the article was directed at, and caused harm in, California.77 The Court found that the defendant intentionally caused harm in the forum state, and therefore allowed California to exercise specific jurisdiction over the non-resident defendant.78
What has come to be called the "effects test" has profound practical implications for the Internet, as well as the potential to impose tremendous jurisdictional liability should GTME ever be in the unfortunate position of a tortfeasor. The Internet allows people to communicate information rapidly to millions of people throughout the world.79 Near the turn of the century, the Internet is expected to grow to approximately 200,000,000 users. Ultimately, this expansion has the effect of providing a communications media with far-reaching potential legal implications including tortuous conduct and, in particular, defamation suits.80 The court, in a unique Internet defamation case, Panavision Int'l, L.P. v. Toeppen, 81 explores in considerable detail the "effects test" for tortuous conduct and its applicability to the Internet.
In Panavision, the defendant, who resided in Illinois, registered the domain name "Panavision.com" (undoubtedly anticipating that Panavision would find value in its use in the immediate future). The defendant then offered to sell it to the plaintiffs for $13,000.82 The court relied on the "effects test" established in Calder in holding that Toeppen intentionally caused injury in the state of California and is subsequently subject to that state's long arm jurisdiction 83, even though the defendant caused the alleged harm from a distance greater then 2000 miles away.84
Another case that squarely falls under the "effects test" rubric deals both with pernicious e-mail messages and the posting of injurious messages to a Web site. Edias Software Int'l, L.L.C. v. Basis Int'l LTD.,85 represents another case where a defendant was accused of posting defamatory messages on its Web site and through its e-mail account, after a contract between the parties went sour.86 The plaintiff was an Arizona-based corporation and the defendant was principally located in New Mexico.87 The court made the blanket, and arguably premature, assertion that "e-mail does not differ substantially from other recognizable forms of communication, such as traditional mail or phone calls."88 Ultimately, the court held that the defendant corporation's e-mail and web postings constituted intentional tortuous conduct that caused harm to a corporation located in Arizona. Although not explicitly mentioned by the court, a relevant factor, again, may have been the relatively close proximity of the two states to one another. Of course, it may be that another factor was the possibility that both the plaintiff and the defendant corporations had established good will with customers in neighboring states.89
The courts' prior determinations regarding jurisdictional issues raise the overarching question of how a court should define the cyberspace community, when existing legal premises can be frustrated by invalid conceptions of jurisdiction. The courts' responses, thus far, have been to determine through the "totality of the circumstances" if a plaintiff has satisfied its burden of establishing "minimum contacts" under the standard of International Shoe and its progeny. This standard, originally developed under a presence theory, though extremely appropriate considering the need for the courts to develop Internet jurisdictional law, remains incomplete to some degree.
In short, physical geography continues to play an implicit role in the courts' analysis, even though the Internet is most appropriately recognized as a "virtual" community which is not geographically based.90 The courts have, perhaps, applied existing legal doctrine to such an extent that it could legitimately be viewed as analytically erroneous.
GTME's proposed Internet Service Provider, while able to exploit extensive economic opportunity in India, may be subject to uncertain jurisdictional law.
While GTME may take solace in the fact that traditional jurisdictional law is being applied to the Internet, an increasing number of legal scholars are calling for a new legal paradigm.
India, as well as the United States, must address the complex jurisdictional issues raised by the Internet. As physical geography becomes less prevalent in a global market, the Internet is expanding the meaning of interaction in the "virtual community." One commentator noted the vast implications jurisdictional issues poses for the global community. He remarked on the Zippo court's decision that "[a]lthough this decision concerned a dispute between California and Pennsylvania, the same rationale would apply to a UK web site which was accessed in the United States."91
The question of whether the development of jurisdictional law is best served by viewing the Internet as a "physical" community, not unlike the traditional regime has, at best, provided a dubious answer.
1. The Cyberspace Law Seminar was a course taught at the University of Iowa College of Law, in the spring semester of 1997.
2. Professor Nicholas Johnson, University of Iowa College of Law, "Cyberspace Law Seminar" and "January 15 -- What We Did, Why We Did It."
3. See generally, MASAAKI FUKUNAGA, SOCIETY, CASTE AND FACTIONAL POLITICS: CONFLICT AND CONTINUITY IN INDIA, (1993).
4. See generally, K. P. ALEAZ, DIMENSIONS OF INDIAN RELIGION: STUDY, EXPERIENCE, AND INTERACTION (1995).
5. See generally, <http://www.3seblr.soft.net/India.html> for a valuable source of information concerning Indian culture.
6. Id.
7. See <http://www.engr.uvic.ca/~nagarnal/india.html>.
8. Supra, note 5.
9. See <http://www.m-web.com/es009.html> for an excellent insight into Government spending and budget information. This site breaks down different sectors of the Indian economy and provides useful information concerning government planning and future prospective.
10. One fourth of India's total telecommunications capacity is located in four cities; Delhi; Calcutta; Mumbai; and Chennai.
11. Id.
12. Marcus W. Brauchli, Bangalore or Bust: India's High-Tech Capital Lures Host of Foreign Firms, Asian Wall St. J. 1 1993 WL-WSJA 2056415.
13. See <http://www.asel.udel.edu/~ramanath/iisc.html>
14. See <http://webhead.com/WWWVL/India/india206.html> for a listing of institutions of higher education in India. This site provides hot-links to their individual web sites.
15. Brauchli, supra note 11, at 3.
16. Id. at 1.
17. See generally, <http://www.m-web.com/es001.html> for India's present and future economic outlook.
18. Supra, note 9.
19. Bala Balachandran & Venkatesh Shankar, How to Prepare for Your Indian Venture, 1993 WL-WSJA 2033785.
20. <http://www.vsnl.net.in/>. See generally, Peter Waldmen, Mixed Basket: India's Huge Phone Market Offers Big Rewards, Risks, 1995 WL-WSJA 8779075.
21. See generally, Richard S. Zembek, Jurisdiction and the Internet: Fundamental Fairness in the World of Cyberspace, 6 Alb. L. J. Sci. & Tech. 339. This article provides an in-depth analysis regarding the application of existing jurisdictional law to the Internet, and provides possible solutions for dealing with the Internet. The article proposes that jurisdictional issues raised by the Internet can be dealt with under the existing legal regime developed in advertisement, telephone and environmental case law. Mr. Zembek states that "[the} application of existing paradigms, rather than reactionary changes, will ensure the continued flexibility of jurisdictional jurisprudence." Id. at 367-368.
22. William S. Byassee, Jurisdiction of Cyberspace: Applying Real World Precedent to the Virtual Community, 30 Wake Forest L. Rev. 197, 199 (1995). This article provides a useful insight into some of the problems inherent with applying existing law to the Internet. However, the author makes it clear that the "current legal principles wholly are [not] inadequate," but concluding the sensitivity needed to deal with the Internet is most appropriately left to the province of the legislature. Id. at 199-200.
23. International Shoe Co. v. Washington, 326 U.S. 310 (1945) (discussing what due process considerations must be made in considering whether a court may exercise jurisdiction over an individual).
24. Id. at 316.
25. Id. (quoting Milliken v. Meyer, 311 U.S. 457, 462 (1940)).
26. World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) (discussing the requisites for establishing minimum contacts in a forum state).
27. Hanson v. Denckla, 357 U.S. 235 (1958).
28. World Wide Volkswagen, 444 U.S. at 297.
29. Id.
30. Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985).
31. Id. at 476.
32. Id. at 472-473. See also Keeton v. Hustler Magazine Inc., 465 U.S 770, 774 (1984) (stressing that when activities are directed at a forum state and an injury arises out of those activities, specific jurisdiction may be applied).
33. For the purpose of continuity, the "effects test" and its application will be addressed later in the article.
34. Hanson, 357 U.S. at 250-251.
35. Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 1997 WL 37657 (W.D. Pa. 1997).
36. Id. at 1.
37. Id.
38. Id.
39. Id. at 2. The Pennsylvania's long arm Statue 42 Pa. C. S. A. $ 5322 (b) the exercise of jurisdiction to the "fullest extent allowed under the Constitution of the United States." Id. See also, Statement of Minnesota Attorney General on Internet Jurisdiction, July 1995 for an interesting look into how states are dealing with the jurisdictional issue. The Attorney General stated that "[p]ersons outside of Minnesota who transmit information via the Internet knowing that information will be disseminated in Minnesota are subject to jurisdiction in. . .court. . ."" Id.
40. Id.
41. Bensusan Restaurant Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996).
42. Id. at 301.
43. See Graig Peyton Gaumer, The Minimum Cyber-Contacts Test: An Emerging Standard of Constitutional Personal Jurisdiction, 85 Ill. B. J. 58, 63 (1997) (arguing that the court's final decision not to exercise personal jurisdiction was proper, but its reasoning was flawed). This article argues that there was sufficient minimum contacts, but that is would be unfair to require the defendants to defend the lawsuit in New York.
44. Bensusan, supra note 41, at 300. See also Macroberts: Landmark Decision on Jurisdiction in Cyberspace, 1997 WL 8031287 M2 Presswire (distinguishing cases on the basis of passivity of the Web user).
45. Id. at 301.
46. See generally Rober A. Bourque and Kerry L. Conrad, Avoiding Remote Jurisdiction Based on Internet Web Site, NYLU December 10, 1996 accessible on the Web at <http://www.ljx.com/internet/index.html>. The authors represented the defendant in the Bensusan case. Gaumer, supra note 43, at FN 52.
47. Compuserve, Inc., v. Patterson, 89 F. 3d 1257 (6th Cir. 1996).
48. Id. at 1268.
49. Id. at 1263.
50. Zippo Manufacturing, 1997 WL 37657, at 4.
51. Inset Systems, Inc., v. Instruction Set, 937 F. Supp. 161 (D. Conn. 1996).
52. Id. at 162.
53. Id. at 165.
54. Bensusan, 937 F. Supp. at 299.
55. Inset Systems, 937 F. Supp. at 165.
56. Bensusan, 937 F. Supp. at 299.
57. State v. Granite Gate Resorts, 1996 WL 767431 (Minn. Dist. Ct.).
58. The defendants' Web site is located at <http://www.vegas.com>. Id. at 3.
59. Id. at 7.
60. Id. at 6.
61. Id. at 8-9. The defendants refused to turn over its mailing list, but the court had ample reason to suspect that Minnesota residents were on it. The plaintiffs were residents of Minnesota alleging consumer fraud. See generally, Court Rules That Web site Subjects Owner to Personal Jurisdiction in any State, Netwatchers' Cyberzine, Vol. 2 No. 6 (Nov. 27, 1996) at <http://www.emitech.com.netwatchers/front.htm>.
62. Granite, supra note 57, at 11.
63. Maritz, Inc. v. Cybergold, Inc., 947 F. Supp. 1328 (E.D. Mo. 1996).
64. Id. at 1330.
65. Id.
66. Id. It is interesting to note that the Cybergold Web site was accessed 311 times in Missouri, 180 of which were done by its own employees. It is hard to imagine how the court would have ruled if 100 people in Missouri accessed the site. What about 75? 50?
67. The court in Inset Systems noted that the Internet is unlike traditional advertising media in that "advertisements over the Internet are available to users continually, at the stroke of a few keys of a computer." Inset Systems, 937 F. Supp. at 163.
68. Pres-Kap, Inc., v. System One, Direct Access, Inc., 636 So. 2d. 1351 (Fla. Ct. App.).
69. Id. at 1353. The court also found that most of the contractual interaction binding the two parties took place exclusively in the defendant's home state of New York. This can be distinguished from Compuserve where the contract essentially was entered into in the forum state.
70. Id.
71. Id. One may want to question this proposition in light of Compuserve, which considered the formation of a contractual relationship to be a significant factor in determining jurisdictional issues.
72. Id. The court went on to state, though admittedly in dicta, that knowing where a database server is located may be irrelevant to the entire jurisdictional inquiry. This seems to be axiomatic. Most individuals do not know were the server they are using is located, and even if they did, would not expect to be subject to suit in that state.
73. Id.
74. Id. at 1354. This argument entirely unpersuasive. Individuals send payments to many different parts of the country, and to subject them to liability in multiple foreign jurisdictions is clearly a violation of Due Process.
75. See generally the Supreme Court's discussions of "fair play and substantial justice" in Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985); World-Wide Volkswagen Corp. et al., v. Woodson, 444 U.S. 286 (1980); International Shoe Co. v. Washington 326 U.S. 310 (1945).
76. Calder v. Jones, 465 U.S. 783 (1984) (holding that jurisdiction may be asserted when a defendant intentionally engages in tortuous conduct directed at an individual or entity in a foreign state).
77. Id. at 789. The article attacked the plaintiff who was domiciled in California, and the defendant was well aware of this fact. This is probably of little consequence since it was a national magazine. Theoretically, the defendant could be subject to suit in any state in which the plaintiff was known to be residing.
78. Id. at 789-791. See also California Software Inc., v. Reliability Research, Inc., 631 F. Supp. 1356, 1356 (holding that jurisdiction could be asserted based solely on out of state communications that intended to cause harm in the forum state).
79. See generally A.C.L.U. v. Reno, 929 F. Supp. 824 (E.D. Penn. 1996) for an exceptional description of the capabilities and liabilities involved in the use of the Internet.
80. Id. at 831. See also United States v. Thomas, 74 F. 3d. 701, 709 (6th Cir. 1996) (providing a good discussion the jurisdictional implications of transporting obscenity via the Internet); R. Timothy Muth, Old Doctrines on a New Frontier: Defamation and Jurisdiction in Cyberspace, 68-Sep Wis. Law., 13 (discussing existing legal doctrines concerning jurisdiction and their present day application to the Internet).
81. Panavision Int'l, L.P. v. Toeppen, 938 F. Supp. 616 (C.D. Cal. 1996).
82. Id. at 619. It is interesting to note that the defendant entrepreneur registered a number of trademark including "deltaairlines.com", "northwestairlines.com and "neimanmarcus.com" and was involved in other trademark infringement suits after he demanded money for the relinquishment of these domain names. Id.
83. Id. at 622. The record states that Toeppen had only been in California twice that year on unrelated business, nevertheless the court concluded that he had sufficient connections to purposefully avail himself in California. The court also acknowledged that Toeppen was not running a business, rather was merely extorting money from various corporations. Id. at 619.
84. See generally Southern Mach. Co. v. Mohasco Indus., 401 F. 2d 374, 381 (6th Cir. 1968) ("determining the present outer limits of . . .jurisdiction based on a single act").
85. Edias Software Int'l, L.L.C. v. Basis Int'l LTD., 947 F. Supp. 413 (D. Ariz. 1996).
86. Id. at 415.
87. Id.
88. Id. at 419. The court here fails to acknowledge the manner in which material can proliferate via the Internet much more rapidly then the traditional modes of communication. This seems to be of special concern in defamation or libel suits. Ultimately, the "effects test" established in Calder makes this argument a moot point, because jurisdiction may be asserted in relation to common tort principles of intentional harm directed at an individual or an entity. The author realizes that in defamation cases the relevant community must be established to show harm.
89. The author merely wishes to convey the extent to which existing legal paradigms are effecting the application of jurisdictional law to the Internet. Reasonable people could disagree whether it is wise, but it is important to acknowledge the implicit considerations in the court's determinations.
90. See generally, David Bender, Emerging Personal Jurisdiction Issues on the Internet, 453 PLI/Pat 7 (1996) (discussing the Internet as a non-physical community).
91. Macroberts: US Court Takes Jurisdiction Over a Party Because of the Existence of a Web site, 1997 WL 8028297 M2 Presswire. In this article the author urges the adoption of the "CyberMark" which would ensure that innocent activities conducted over the Internet are protected from being haled into courts, theoretically, throughout the world.
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