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Here is an excerpt of the Legal Analysis for

ZIPPO MFG. CO. V. ZIPPO DOT COM

952 F.Supp. 1119 (W.D. Pa. 1997)

In Zippo Manufacturing Co. v. Zippo Dot Com, Inc. 52 F. Supp. 1119 (W.D. Pa. 1997) to determine whether the operation of an internet site can support the minimum contacts necessary for the exercise of personal jurisdiction, the court used a "sliding scale" to measure an internet site's connections to a forum state. A "passive" website, one that merely allows the owner to post information on the internet, is at one end of the scale. It will not be sufficient to establish personal jurisdiction. At the other end are sites whose owners engage in repeated online contacts with forum residents over the internet, and in these cases personal jurisdiction may be proper. In between are those sites with some interactive elements, through which a site allows for bilateral information exchange with its visitors. Here, courts find more familiar terrain, requiring that courts examine the extent of the interactivity and nature of the forum contacts. This sliding scale is not well adapted to the general jurisdiction inquiry, because even repeated contacts with forum residents by a foreign defendant may not constitute the requisite substantial, continuous and systematic contacts required for a finding of general jurisdiction. While an internet firm may be doing business with a state, it is not doing business in that state. Access Telecom, Inc. v. MCI Telecomm. Corp., 197 F.3d 694, 717 (5th Cir. 1999); see also Bancroft & Masters, Inc. v. Augusta Nat'l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000) ("Engaging in commerce with residents of the forum state is not in and of itself the kind of activity that approximates physical presence within the state's borders."). Though the maintenance of a website is, in a sense, a continuous presence everywhere in the world, the contacts must be "substantial." See Wilson v. Belin, 20 F.3d 644, 650-51 (5th Cir. 1994) which found no personal jurisdiction over individual defamation defendants where the defendants did not conduct regular business in Texas and did not make a substantial part of their business decisions in Texas. In the Supreme Court's seminal case on general jurisdiction, Perkins v. Benguet Consolidated Mining Co. 342 U.S. 437, 438, 96 L. Ed. 485, 72 S. Ct. 413, 63 Ohio Law Abs. 146 (1952) a Philippine corporation temporarily relocated to Ohio. Id. at 447-48. The corporation's president resided in Ohio, the records of the corporation were kept in Ohio, director's meetings were held in Ohio, accounts were held in Ohio banks, and all key business decisions were made there. Id. In Bird v. Parsons, 289 F.3d 865 (6th Cir. 2002). the Sixth Circuit found Ohio courts lacked general jurisdiction over a non-resident business that registered domain names despite the fact that: (1) the defendant maintained a website open for commerce with Ohio residents and (2) over 4000 Ohio residents had in fact registered domain names with the defendant. Id. at 873-74. But for matters related to specific jurisdiction the Zippo standard is more appropriate. The question is whether the plaintiff has made out his prima facie case with respect to the defendants' contacts with the forum state. Zippo's scale does work with specific jurisdiction -- the context in which it was originally conceived. Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1122 (W.D. Pa. 1997) (noting that the plaintiff conceded that only specific jurisdiction was at issue in the case). For specific jurisdiction courts look only to the contact out of which the cause of action arises Lewis v. Fresne, 252 F.3d 352, 358 (5th Cir. 2001).

Commentary: Jurisdiction is a mess. You can see from the complex web of cases that had to be quoted that for the most part the Supreme Court has botched things very badly. Simplification is in order and you see some of those concepts herein but the court complicates matters even more. Intentional business contacts and business, no matter how they are created should always result in personal jurisdiction related to that contact. Further, any tort directed at someone in a state no matter the physical contacts should result in personal jurisdiction. If those two rules were adopted, about ½ the mess would be alleviated. But as you may see in the Calder v. Jones case and its progeny things are in limbo and getting worse. Adding in the internet with a sliding scale standard is just as screwed up. If you put something on the web with the intent to harm someone else, it is reasonable to know that you will harm them where they live. Hence, you consented to jurisdiction by your intentional and knowing act. This sliding scare stuff is nothing more than a payday for big law firms to go to court and argue all day long.

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