Domain Names Are “Located” Where the Registrar is Located
Office Depo, Inc. v. Zuccarini, 2010 WL 669263, No. 07-16788 (9th Cir. Feb. 26, 2010).

Appellant Zuccarini registered the domain name “officdepo.com” and Office Depot subsequently brought, and won, an action against Zuccarini under the Anticybersquating Consumer Protection Act of 1999 (“ACPA”). Office Depot obtained a judgment against appellant, which it assigned to DSH. DSH sought to levy upon some of the other 248 domains owned by appellant and registered the judgment in the district court for the Northern District of California. The district court denied DSH’s request to compel the domain registrars to transfer Zuccarini’s property, holding that under California Code of Civil Procedure § 699.040, it could not order a third party to turn over property. DSH then moved for the appointment of a receiver who would obtain and sell the domains to satisfy the judgment. The district court granted the motion and Zuccarini appealed.

A district court can obtain quasi in rem jurisdiction over property held within its geographical borders, including intangible property. Under §§ 695.010(a) and 699.710 of the California Code of Civil Procedure, all property of a judgment debtor can be used to satisfy a writ of execution. The applicable state and federal provisions declare that if the domain names are property subject to execution, and if they are located in the Northern District of California, then the district court is an appropriate location to execute judgment on them through the appointment of a receiver.

“[A]ttaching a situs to intangible property is necessarily a legal fiction; therefore, the selection of a situs for intangibles must be context-specific, embodying a ‘common sense appraisal of the requirements of justice and convenience in particular conditions.’” Af-Cap Inc. v. Republic of Congo, 383 F.3d 361 (5th Cir. 2004). While California law does not specifically address the location of domain names, the ACPA states that a trademark owner in a cybersquatting action can proceed in rem against a squatter “in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain is located . . . “ 15 U.S.C. § 1125(d)(2)(A).

The court found the language of the ACPA persuasive and concluded that under California law, domain names are located where the registry is located for the purpose of asserting quasi in rem jurisdiction.

Individuals and businesses can be brought to court in states where they live or operate in commerce (personal jurisdiction). Additionally, both can agree to submit to jurisdiction in a forum state as part of a valid contract. What effect then does a website have? Is a page that can be accessed over the internet a “presence” in every state? Or is launching such a site some implicit agreement to litigate a dispute wherever a plaintiff may reside?

A foreign state can exercise personal jurisdiction over a non-resident for non-forum related activities when the individual or business has engaged in “systematic and continuous” activities in the forum state. This type of jurisdiction is known as general jurisdiction and can be exercised when a company does targeted business in a state, such as by opening a store or sending employees to make sales or perform services. A foreign state can exercise specific jurisdiction, however, when an entity’s activity within the state create sufficient “minimum contacts” with the state. Specific jurisdiction is what is invoked when a state exercises jurisdcition based on a website.

To satisfy the “minimum contacts” requirement, websites are divided into 3 categories:

Commercial Websites – which do a substantial volume of business over the internet, and through which customers in any location can immediately engage in business with the business owner;

Interactive Websites – which merely provide information, will almost never provide sufficient minimum contacts for jurisdiction. Such a website will only provide a basis for jurisdiction if there is an intentional tort such as defamation on the website, and if it is directed at the jurisdiction in question

Passive Websites – which permit the exchange of information between the website owner and visitors, may be subject to jurisdiction, depending on the website’s level of interactivity and commerciality, and the amount of contacts which the website owner has developed with the forum due to the availability of the website within the jurisdiction.

If you’re not sure which category your website falls into it may be time to consult with a local internet and e-commerce attorney.. For a quick and easy answer, the Minnesota District Court poses this question, is your website more of “less sophisticated than a typical teenager’s Facebook page”? If it is less sophisticated then chances are you are not subjecting yourself, or your company, to foreign jurisdiction.

Phan v. Pham, 2010 WL 658244 (Cal. App. Ct. Feb. 25, 2010).

Duc Xuan Nguyen, President of the Federation of Associations of the Republic of Vietnam Navy and Merchant Marine sent an e-mail to his fellow veterans accusing plaintiff Huang Tan Phan of having been disciplined by the Navy of the Republic of Vietnam for abusing behavior during the last days of the Vietnam War. Defendant Lang Van Pham received the e-mail and forwarded it with the following introduction: “Everything will come out to the daylight, I invite you and our classmates to read the following comments of Senior Duc (Duc Xuang Nguyen) . . .” The issue before the court was whether the additional comments by defendant were enough to subject him to liability for the defamatory contents of the e-mail he was forwarding.

The court in Barrett v. Rosenthal (2006) 40 Cal. 4th 33, held that simply forwarding a defamatory e-mail was not enough to hold a defendant liable for defamation. The defendant in Barrett, however made “no changes in the article she republished on the newsgroup,” but the court held that at some point “active involvement in the creation of a defamatory Internet posting would expose a defendant to liability as an original source.”

The “material contribution” test articulated by the Ninth Circuit in the case of Fair Housing Council of San Fernando Valley v. Roommates.com, LLC (2008) 521 F.3d 1157 states that a defendant’s own acts must materially contribute to the illegality of a message for immunity to be lost. Applying that test the court held that the defendant in this case made no material contribution to the alleged defamation in the e-mail he received. The defendant merely introduced the contents of an email with the only defamatory content found in the original message. Defendant was therefore immune from liability for defamation under Section 230 of the Communications Decency Act.