|
|
http://laws.findlaw.com/4th/011812p.html |
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
------------------------------------------------*
ALS SCAN, INCORPORATED,
Plaintiff-Appellant,
v.
DIGITAL SERVICE CONSULTANTS,
INCORPORATED,
Defendant-Appellee,No. 01-1812
and
ROBERT WILKINS; ALTERNATIVE
PRODUCTS, INCORPORATED, d/b/a
abpefarc.net, individually,
Defendants.
------------------------------------------------*
Appeal from the United States District Court for the District of Maryland, at Baltimore. Alexander Harvey II, Senior District Judge. (CA-01-496-H)
Argued: April 4, 2002
Decided: June 14, 2002
Before NIEMEYER, Circuit Judge, HAMILTON, Senior Circuit Judge, and W. Craig BROADWATER, United States District Judge for the Northern District of West Virginia, sitting by designation.
____________________________________________________________
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Senior Judge Hamilton and Judge Broadwater joined.
____________________________________________________________
COUNSEL
ARGUED: Robert Lawrence Lombardo, Jr., Columbia, Maryland,
for Appellant. Benjamin I. Fink, FREED & BERMAN, P.C., Atlanta,
Georgia, for Appellee. ON BRIEF: Linda Woolf, GOODELL, DEV-
RIES, LEECH & GRAY, L.L.P., Baltimore, Maryland, for Appellee.
____________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
The question presented in this appeal is whether a Georgia-based
Internet Service Provider subjected itself to personal jurisdiction in
Maryland by enabling a website owner to publish photographs on the
Internet, in violation of a Maryland corporation's copyrights. Adapt-
ing the traditional due process principles used to determine a State's
authority to exercise personal jurisdiction over out-of-state persons to
the Internet context, we hold that in the circumstances of this case, a
Maryland court cannot constitutionally exercise jurisdiction over the
Georgia Internet Service Provider. Accordingly, we affirm the district
court's order dismissing the complaint against the Internet Service
Provider for lack of personal jurisdiction.
I
ALS Scan, Inc., a Maryland corporation with its place of business
in Columbia, Maryland, commenced this action for copyright
infringement against Digital Service Consultants, Inc. ("Digital"), and
Digital's customers, Robert Wilkins and Alternative Products, Inc.
(collectively, "Alternative Products"). ALS Scan, which creates and
markets adult photographs of female models for distribution over the
Internet, claims that Alternative Products appropriated copies of hun-
dreds of ALS Scan's copyrighted photographs and placed them on its
websites, www.abpefarc.net and www.abpeuarc.com, thereby gaining
revenue from them through membership fees and advertising. ALS
Scan further alleges that Digital, as the Internet Service Provider
("ISP") for Alternative Products, "enabled" Alternative Products to
publish ALS Scan's copyrighted photographs on the Internet by pro-
2
viding Alternative Products with the bandwidth service1 needed to
maintain its websites. ALS Scan thus alleges that all of the defendants
have infringed and are infringing its copyrights within Maryland and
elsewhere by selling, publishing, and displaying its copyrighted pho-
tographs.
Digital filed a motion to dismiss the complaint against it under
Federal Rule of Civil Procedure 12(b)(2), asserting that the district
court lacked personal jurisdiction over it. In support of its motion,
Digital provided affidavits demonstrating that Digital is a Georgia
corporation with its only place of business in Atlanta. Digital asserts
that it is an ISP which provided bandwidth service to Alternative
Products as a customer but that it is not affiliated in any way with
Alternative Products except through an arms-length customer rela-
tionship. In addition, Digital states that it did not select the infringing
photographs for publication; it did not have knowledge that they were
posted on Alternative Products' website; and it received no income
from Alternative Products' subscribers. Digital acknowledges that it
does maintain its own website, www.dscga.com, but asserts that its
website "contains no means for any person to enter into a contract
with, transfer funds to, or otherwise transact business with, Digital."
Digital also states that, other than through the Internet, it has no
contacts with the State of Maryland. It avers that it conducts no busi-
ness and has no offices in Maryland; that it has no contracts with any
persons or entities in Maryland; that it derives no income from any
clients or business in Maryland; that it does not advertise in Maryland
(other than through its website); and that it owns no property in Mary-
land.
In a responding affidavit, ALS Scan asserts that copies of its copy-
righted photographs have appeared on Alternative Products' two web-
____________________________________________________________
1 Bandwidth in this context has been explained by the following anal-
ogy: "If you think of the Internet as the Information Superhighway, then
think of bandwidth as how many lanes of traffic it can handle. Band-
width describes how much information can be sent over a connection
at one time." See Glossary of Internet Terms: Bandwidth, Internet
for Beginners, at http://netforbeginners.about.com/library/glossary/
bldef-bandwidth.htm (last visited May 18, 2002).
3
sites, www.abpefarc.net and www.abpeuarc.com. It also alleges that
one of its employees in Maryland purchased an "on-line" membership
to www.abpefarc.net, using a credit card, and, by obtaining that mem-
bership, the employee received a "user name" and a "password" to
access the website. That website, it asserts, displayed ALS Scan's
copyrighted photographs, allegedly in violation of the Copyright Act.
The district court granted Digital's motion to dismiss for lack of
personal jurisdiction. The court found that it had neither specific nor
general jurisdiction over Digital because "Digital does not engage in
any continuous and systematic activities within Maryland, and there
is no evidence that [ALS Scan's] claim arises out of any contacts
which Digital may have with Maryland."
From the district court's ruling, ALS Scan filed this interlocutory
appeal.2
II
The district court's decision to dismiss the complaint against Digi-
tal for lack of personal jurisdiction presents a legal question that we
review de novo, see Christian Science Bd. of Dirs. of the First Church
of Christ, Scientist v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001),
although we review any underlying factual findings for clear error,
see In re Celotex Corp., 124 F.3d 619, 627 (4th Cir. 1997).
Under Federal Rule of Civil Procedure 4(k)(1)(A), a federal court
may exercise personal jurisdiction over a defendant in the manner
provided by state law. See ESAB Group, Inc. v. Centricut, Inc., 126
F.3d 617, 622 (4th Cir. 1997). Maryland courts have concluded that
the State's long-arm statute, Md. Code Ann., Courts & Jud. Proc. § 6-
103, expands Maryland's exercise of personal jurisdiction to the
____________________________________________________________
2 ALS Scan asserts that the district court certified its right to file an
interlocutory appeal in accordance with Federal Rule of Civil Procedure
54(b), an assertion that Digital now disputes. Following oral argument,
ALS Scan provided the court with a copy of the district court's June 19,
2001 order, directing that this interlocutory appeal be "transmitted to the
United States Court of Appeals for the 4th Circuit." We accept this order
as fulfilling the requirements of Rule 54(b).
4
extent allowed by the Due Process Clause of the Fourteenth Amend-
ment. See Androutsos v. Fairfax Hosp., 594 A.2d 574, 576 (Md.
1991). "Because the limits of Maryland's statutory authorization for
the exercise of personal jurisdiction are coterminous with the limits
of the Due Process Clause, the statutory inquiry necessarily merges
with the constitutional inquiry, and the two inquiries essentially
become one." Stover v. O'Connell Assocs., Inc., 84 F.3d 132, 135-36
(4th Cir. 1996). Thus, we apply the constitutional limitations on state
service of process incorporated in Rule 4(k)(1)(A), and our inquiry
coalesces into the question of whether Digital has sufficient minimum
contacts with Maryland. See Diamond Healthcare of Ohio, Inc. v.
Humility of Mary Health Partners, 229 F.3d 448, 450 (4th Cir. 2000);
Ciena Corp. v. Jarrard, 203 F.3d 312, 317 (4th Cir. 2000).
Historically, the limits on personal jurisdiction were grounded in a
court's power over the actual person of the defendant. Thus, a per-
son's "presence within the territorial jurisdiction of a court was pre-
requisite to its rendition of a judgment personally binding him." Int'l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citing Pennoyer
v. Neff, 95 U.S. 714, 733 (1877)). Over time, however, and with the
introduction of personal service of summons or other forms of notice,
the Supreme Court recognized that "due process requires only that in
order to subject a defendant to a judgment in personam, if he be not
present within the territory of the forum, he have certain minimum
contacts with it such that the maintenance of the suit does not offend
`traditional notions of fair play and substantial justice.'" Int'l Shoe,
326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463
(1940)). With respect to corporations, the Court has recognized that
"unlike an individual, its `presence' without, as well as within, the
state of its origin can be manifested only by activities carried on in
its behalf by those who are authorized to act for it." Id. Thus, "the
terms `present' or `presence' are used merely to symbolize those
activities of the corporation's agent within the state which courts will
deem to be sufficient to satisfy the demands of due process." Id. at
316-17.
Although the courts have recognized that the standards used to
determine the proper exercise of personal jurisdiction may evolve as
technological progress occurs, it nonetheless has remained clear that
technology cannot eviscerate the constitutional limits on a State's
5
power to exercise jurisdiction over a defendant. In Hanson v.
Denckla, 357 U.S. 235 (1958), the Court explored the problem of rec-
onciling technological advances with the limits of personal jurisdic-
tion and stated:
As technological progress has increased the flow of com-
merce between States, the need for jurisdiction over nonresi-
dents has undergone a similar increase. At the same time,
progress in communications and transportation has made the
defense of a suit in a foreign tribunal less burdensome. In
response to these changes, the requirements for personal
jurisdiction over nonresidents have evolved from the rigid
rule of Pennoyer v. Neff to the flexible standard of Interna-
tional Shoe Co. v. State of Washington. But it is a mistake
to assume that this trend heralds the eventual demise of all
restrictions on the personal jurisdiction of state courts.
Those restrictions are more than a guarantee of immunity
from inconvenient or distant litigation. They are a conse-
quence of territorial limitations on the power of the respec-
tive States. However minimal the burden of defending in a
foreign tribunal, a defendant may not be called upon to do
so unless he has had the "minimal contacts" with that State
that are a prerequisite to its exercise of power over him.
Id. at 250-51 (internal citations omitted); see also McGee v. Int'l Life
Ins. Co., 355 U.S. 220, 222 (1957) (noting that the trend toward
expanding the permissible scope of personal jurisdiction is, in part,
"attributable to the fundamental transformation of our national econ-
omy over the years"). The Court has thus mandated that limits on the
states' power to exercise personal jurisdiction over nonresidents must
be maintained, despite the growing ease with which business is con-
ducted across state lines.
Determining the extent of a State's judicial power over persons
outside of its borders under the International Shoe standard can be
undertaken through two different approaches - by finding specific
jurisdiction based on conduct connected to the suit or by finding gen-
eral jurisdiction. See Helicopteros Nacionales de Columbia, S.A. v.
Hall, 466 U.S. 408, 414 (1984); Christian Science Bd., 259 F.3d at
216. If the defendant's contacts with the State are also the basis for
6
the suit, those contacts may establish specific jurisdiction. In deter-
mining specific jurisdiction, we consider (1) the extent to which the
defendant "purposefully avail[ed]" itself of the privilege of conduct-
ing activities in the State; (2) whether the plaintiffs' claims arise out
of those activities directed at the State; and (3) whether the exercise
of personal jurisdiction would be constitutionally "reasonable." See
Christian Science Bd., 259 F.3d at 216; see also Helicopteros, 466
U.S. at 414 & n.8 (describing a basis for jurisdiction where "a contro-
versy is related to or `arises out of' a defendant's contacts with the
forum").
On the other hand, if the defendant's contacts with the State are not
also the basis for suit, then jurisdiction over the defendant must arise
from the defendant's general, more persistent, but unrelated contacts
with the State. To establish general jurisdiction over the defendant,
the defendant's activities in the State must have been "continuous and
systematic," a more demanding standard than is necessary for estab-
lishing specific jurisdiction. See Helicopteros, 466 U.S. at 414 & n.9;
ESAB Group, 126 F.3d at 623.
III
In this case, ALS Scan argues that Digital's activity in enabling
Alternative Products' publication of the infringing photographs on the
Internet, thereby causing ALS Scan injury in Maryland, forms a
proper basis for the district court's specific jurisdiction over Digital.
The question thus becomes whether a person electronically transmit-
ting or enabling the transmission of information via the Internet to
Maryland, causing injury there, subjects the person to the jurisdiction
of a court in Maryland, a question of first impression in the Fourth
Circuit.
Applying the traditional due process principles governing a State's
jurisdiction over persons outside of the State based on Internet activ-
ity requires some adaptation of those principles because the Internet
is omnipresent - when a person places information on the Internet,
he can communicate with persons in virtually every jurisdiction. If we
were to conclude as a general principle that a person's act of placing
information on the Internet subjects that person to personal jurisdic-
tion in each State in which the information is accessed, then the
7
defense of personal jurisdiction, in the sense that a State has geo-
graphically limited judicial power, would no longer exist. The person
placing information on the Internet would be subject to personal juris-
diction in every State.
But under current Supreme Court jurisprudence, despite advances
in technology, State judicial power over persons appears to remain
limited to persons within the State's boundaries and to those persons
outside of the State who have minimum contacts with the State such
that the State's exercise of judicial power over the person would not
offend traditional notions of fair play and substantial justice. See Han-
son, 357 U.S. at 250-51 (noting that "it is a mistake to assume that
[the technological] trend heralds the demise of all restrictions"). But
even under the limitations articulated in International Shoe and
retained by Hanson, the argument could still be made that the Inter-
net's electronic signals are surrogates for the person and that Internet
users conceptually enter a State to the extent that they send their elec-
tronic signals into the State, establishing those minimum contacts suf-
ficient to subject the sending person to personal jurisdiction in the
State where the signals are received. Under this argument, the elec-
tronic transmissions "symbolize those activities . . . within the state
which courts will deem to be sufficient to satisfy the demands of due
process." Int'l Shoe, 326 U.S. at 316-17. But if that broad interpreta-
tion of minimum contacts were adopted, State jurisdiction over per-
sons would be universal, and notions of limited State sovereignty and
personal jurisdiction would be eviscerated.
In view of the traditional relationship among the States and their
relationship to a national government with its nationwide judicial
authority, it would be difficult to accept a structural arrangement in
which each State has unlimited judicial power over every citizen in
each other State who uses the Internet. That thought certainly would
have been considered outrageous in the past when interconnections
were made only by telephones. See, e.g., Stover, 84 F.3d at 137 (find-
ing a defendant's "occasional telephonic requests for information
from Maryland-based investigation services" to be insufficient to sub-
ject the defendant to personal jurisdiction in a Maryland court). But
now, even though the medium is still often a telephone wire, the
breadth and frequency of electronic contacts through computers has
resulted in billions of interstate connections and millions of interstate
8
transactions entered into solely through the vehicle of the Internet.
The convergence of commerce and technology thus tends to push the
analysis to include a "stream-of-commerce" concept, under which
each person who puts an article into commerce is held to anticipate
suit in any jurisdiction where the stream takes the article. But the
"stream-of-commerce" concept, although considered, has never been
adopted by the Supreme Court as the controlling principle for defin-
ing the reach of a State's judicial power. See generally Asahi Metal
Indus. Co. v. Superior Court of Cal., 480 U.S. 102 (1987).
Until the due process concepts of personal jurisdiction are reconc-
eived and rearticulated by the Supreme Court in light of advances in
technology, we must develop, under existing principles, the more lim-
ited circumstances when it can be deemed that an out-of-state citizen,
through electronic contacts, has conceptually "entered" the State via
the Internet for jurisdictional purposes. Such principles are necessary
to recognize that a State does have limited judicial authority over out-
of-state persons who use the Internet to contact persons within the
State. Drawing on the requirements for establishing specific jurisdic-
tion, see Helicopteros, 466 U.S. at 414 & n.8, which requires pur-
poseful conduct directed at the State and that the plaintiff's claims
arise from the purposeful conduct, we adopt today the model devel-
oped in Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F.
Supp. 1119 (W.D. Pa. 1997).
In Zippo, the court concluded that "the likelihood that personal
jurisdiction can be constitutionally exercised is directly proportionate
to the nature and quality of commercial activity that an entity con-
ducts over the Internet." 952 F. Supp. at 1124. Recognizing a "sliding
scale" for defining when electronic contacts with a State are suffi-
cient, the court elaborated:
At one end of the spectrum are situations where a defendant
clearly does business over the Internet. If the defendant
enters into contracts with residents of a foreign jurisdiction
that involve the knowing and repeated transmission of com-
puter files over the Internet, personal jurisdiction is proper.
At the opposite end are situations where a defendant has
simply posted information on an Internet Web site which is
accessible to users in foreign jurisdictions. A passive Web
9
site that does little more than make information available to
those who are interested in it is not grounds for the exercise
[of] personal jurisdiction. The middle ground is occupied by
interactive Web sites where a user can exchange information
with the host computer. In these cases, the exercise of juris-
diction is determined by examining the level of interactivity
and commercial nature of the exchange of information that
occurs on the Web site.
Id. (internal citations omitted); accord Soma Med. Int'l v. Standard
Chartered Bank, 196 F.3d 1292, 1297 (10th Cir. 1999) (citing the
Zippo standard for "passive" Web sites and thus finding a corpora-
tion's Web site an insufficient basis for an exercise of personal juris-
diction); Mink v. AAAA Dev. LLC, 190 F.3d 333, 336 (5th Cir. 1999)
(applying Zippo's sliding scale test to the case before it); Cybersell,
Inc. v. Cybersell, Inc, 130 F.3d 414, 418 (9th Cir. 1997) (quoting
Zippo for the proposition that "[c]ourts that have addressed interactive
sites have looked to the `level of interactivity and commercial nature
of the exchange of information that occurs on the Web site' to deter-
mine if sufficient contacts exist to warrant the exercise of jurisdic-
tion").
Thus, adopting and adapting the Zippo model, we conclude that a
State may, consistent with due process, exercise judicial power over
a person outside of the State when that person (1) directs electronic
activity into the State, (2) with the manifested intent of engaging in
business or other interactions within the State, and (3) that activity
creates, in a person within the State, a potential cause of action cogni-
zable in the State's courts. Under this standard, a person who simply
places information on the Internet does not subject himself to jurisdic-
tion in each State into which the electronic signal is transmitted and
received. Such passive Internet activity does not generally include
directing electronic activity into the State with the manifested intent
of engaging business or other interactions in the State thus creating
in a person within the State a potential cause of action cognizable in
courts located in the State.
This standard for reconciling contacts through electronic media
with standard due process principles is not dissimilar to that applied
by the Supreme Court in Calder v. Jones, 465 U.S. 783 (1984). In
10
Calder, the Court held that a California court could constitutionally
exercise personal jurisdiction over a Florida citizen whose only mate-
rial contact with California was to write a libelous story in Florida,
directed at a California citizen, for a publication circulated in Califor-
nia, knowing that the "injury would be felt by [the Californian] in the
State in which she lives and works." Id. at 789-90. Analogously,
under the standard we adopt and apply today, specific jurisdiction in
the Internet context may be based only on an out-of-state person's
Internet activity directed at Maryland and causing injury that gives
rise to a potential claim cognizable in Maryland.
Applying this standard to the present case, we conclude that Digi-
tal's activity was, at most, passive and therefore does not subject it
to the judicial power of a Maryland court even though electronic sig-
nals from Digital's facility were concededly received in Maryland.
Digital functioned from Georgia as an ISP, and in that role provided
bandwidth to Alternative Products, also located in Georgia, to enable
Alternative Products to create a website and send information over the
Internet. It did not select or knowingly transmit infringing photo-
graphs specifically to Maryland with the intent of engaging in busi-
ness or any other transaction in Maryland. Rather, its role as an ISP
was at most passive. Surely, it cannot be said that Digital "purpose-
fully availed" itself of the privilege of conducting business or other
transactions in Maryland. See ESAB Group, 126 F.3d at 623 (quoting
Hanson, 357 U.S. at 253).
Indeed, the only direct contact that Digital had with Maryland was
through the general publication of its website on the Internet. But that
website is unrelated to ALS Scan's claim in this case because Digi-
tal's website was not involved in the publication of any infringing
photographs. See Christian Science Bd., 259 F.3d at 216.
Thus, under the standard articulated in this case, Digital did not
direct its electronic activity specifically at any target in Maryland; it
did not manifest an intent to engage in a business or some other inter-
action in Maryland; and none of its conduct in enabling a website cre-
ated a cause of action in Maryland, although on this last point, facts
would have to be developed about whether Digital continued to
enable the website after receiving notice. See ALS Scan, Inc. v.
RemarQ Communities, Inc., 239 F.3d 619, 620 (4th Cir. 2001). This
11
factual issue, however, need not be resolved because Digital's con-
duct does not satisfy the first two prongs of the test.
Accordingly, we agree with the district court that Digital's contacts
in Maryland do not justify a Maryland court's exercise of specific
jurisdiction over Digital.
IV
It is not clear whether ALS Scan contends that, even if it is unable
to establish specific jurisdiction over Digital, a Maryland court should
nevertheless assert general jurisdiction over Digital. At one point in
its brief, ALS Scan acknowledged that Digital's contacts with Mary-
land are "perhaps not extensive enough" to justify a finding of general
jurisdiction. But, somewhat in tension with this acknowledgment,
ALS Scan continues to argue that Digital's general contacts with
Maryland through the maintenance of its own website are sufficient
to justify the district court's exercise of general jurisdiction over Digi-
tal.
It is true that even in the absence of specific jurisdiction, general
jurisdiction may exist when the defendant has sufficient contacts with
the forum State. See Helicopteros, 466 U.S. at 414 & n.9. General
jurisdiction may be asserted over a defendant "whose activities in the
forum state have been continuous and systematic . . . . But the thresh-
old level of minimum contacts sufficient to confer general jurisdiction
is significantly higher than for specific jurisdiction." ESAB Group,
126 F.3d at 623 (internal quotation marks and citation omitted).
We are not prepared at this time to recognize that a State may
obtain general jurisdiction over out-of-state persons who regularly
and systematically transmit electronic signals into the State via the
Internet based solely on those transmissions. Something more would
have to be demonstrated. And we need not decide today what that
"something more" is because ALS Scan has shown no more.
Other than maintain its website on the Internet, Digital has engaged
in no activity in Maryland, and its only contacts with the State occur
when persons in Maryland access Digital's website. Even though
12
electronic transmissions from maintenance of a website on the Inter-
net may have resulted in numerous and repeated electronic connec-
tions with persons in Maryland, such transmissions do not add up to
the quality of contacts necessary for a State to have jurisdiction over
the person for all purposes. See GTE New Media Servs., Inc. v. Bell-
South Corp., 199 F.3d 1343, 1349 (D.C. Cir. 2000) (finding that "per-
sonal jurisdiction surely cannot be based solely on the ability of
District [of Columbia] residents to access the defendants' websites,
for this does not by itself show any persistent course of conduct by
the defendants in the District"); Mink, 190 F.3d at 336 (finding
AAAA's website to be "insufficient to subject it to personal jurisdic-
tion" because AAAA merely posted information about its products,
provided users with a printable mail-in order form, and provided con-
tact information for the company, including an e-mail address).
V
For the foregoing reasons, we affirm the order of the district court
dismissing the complaint against Digital for lack of personal jurisdic-
tion.3
AFFIRMED
____________________________________________________________
3 ALS Scan also challenges the district court's refusal to have allowed
it to engage in discovery before ruling on the jurisdictional issue. ALS
Scan has failed, however, to proffer any further facts that it could demon-
strate that would be material to the limited jurisdictional ruling. The dis-
trict court already had ALS Scan's affidavit as well as the product of its
Internet searches. Moreover, ALS Scan has not suggested that the juris-
dictional facts asserted by Digital in its affidavits are inaccurate. At most,
it made some conclusory allegations in support of its request for discov-
ery. In these circumstances, we conclude that the district court did not
abuse its discretion and was justified in concluding that further discovery
would not aid resolution of the personal jurisdiction issue. See Mylan
Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 64 (4th Cir. 1993).
13