US courts have found clever ways to apply traditional notions of personal jurisdiction to Internet cases. Their efforts over the past two decades have resulted in an impressive, but convoluted, body of cyber law that permits defendants to sometimes be haled into distant jurisdictions solely based on their online activities. In the face of more advanced Internet piracy, though, these square-peg and round-hole efforts might be reaching their limits.
Some commentators have suggested an Internet solution to our Internet problems: a "virtual" civil court system with nationwide jurisdiction over Internet matters.
While a "cyber court" or "virtual court" sounds sci-fi or complexly high-tech, it is not so different from a modern bricks-and-mortar court. Electronic court filing of documents is already widely accepted and has brought increased efficiency and access. As courts have come to accept that an electronic copy of a document can be scrutinized just as thoroughly as paper, so too are they increasingly accepting on-screen presence as a fair equivalent to physical presence. Federal Rule of Civil Procedure 43(a) permits testimony by videoconferencing "[f]or good cause in compelling circumstances and with appropriate safeguards," and many states have similar rules. Electronic case filing (ECF) and videoconferencing are the only two ingredients required for a virtual court.
Once a virtual court system is established, our historical concerns over the unfairness of bringing defendants to distant jurisdictions are mitigated, if not eliminated, by the ease with which they could appear instantaneously and reliably in any district across the country. Why, then, are there personal jurisdiction restrictions on suing an individual in a particular federal court? When such virtualization technology is available, suing an individual in any federal court across the country should be as good as any other, right? Especially in Internet cases, which by the nature of online networks, always pass through numerous states.
Below, I examine a recent Internet jurisdiction issue that the courts have been unable to adequately address and, then, I trace the history of virtual courts to demonstrate that they are not a radical idea at all, and, in fact, would benefit courts, plaintiffs, defendants and taxpayers alike with "virtually" no downside.
BitTorrent is the most popular peer-to-peer file-sharing technology, facilitating a major portion of today's unauthorized copying of music and video on the Internet. One website, Isohunt.com, tracks currently available files across 546 public BitTorrent trackers, and shows 203 million different files available, which does not even count private trackers. In a study [PDF] from the Internet Commerce Security Laboratory, of the University of Ballarat, researchers have also estimated that at least 89 percent of the files available via BitTorrent are unauthorized copies. Many of those files are downloaded numerous times, resulting in billions of unauthorized copies every year.
Some rights holders perceive this situation as rampant infringement. The decentralized nature of BitTorrent makes pursuit of any lynchpins or hubs of traffic ineffectual, so the rights holders attempt to bring civil lawsuits against the individual users who download their works. Such suits are pejoratively referred to as "copyright trolling." Two obstacles have prevented these suits from success. First, courts have rejected plaintiffs' attempts to sue several individuals in the same suit due to improper joinder. Second, courts have taken a narrow view of personal jurisdiction with regard to BitTorrent, such that plaintiffs have little choice other than to bring suits against defendants in the defendants' home states. Essentially, the only private remedy available to rights holders is to sue individual downloaders for small judgments.
The hundreds of dollars in court costs and thousands spent in attorney's fees per filing, not to mention the uncertainty of verdicts, make bringing such suits implausible. The situation is at an impasse. The courts have a valid point about the fairness of suing defendants under these conditions. Meanwhile, however, online piracy continues unchecked.
What kind of forum would allow plaintiffs to enforce their copyrights online while safeguarding the civil rights of Internet-using defendants?
The Virtual Magistrate Project was an online arbitration system launched briefly in 1996. The idea was that online service providers, which were called sysops, would add language to their contracts with users that would provide for any disputes to be brought before the Virtual Magistrate (VM). Specifically, the VM was envisioned as a form of Internet self-policing to handle content takedown requests before the Digital Millennium Copyright Act existed. The American Arbitration Association, Villanova's Center for Information Law and Policy, and a few other organizations administered the VM. The VM did not follow the laws of any particular jurisdiction, but rather, was a form of arbitration that its founders expected to be enforceable in US courts.
Though it inspired a great deal of academic commentary, the VM rendered only one decision, a highly criticized one, and then disappeared into cyber history. Subsequent online alternative dispute resolution services have not become widely adopted.
Michigan passed legislation in 2002, to develop the first state civil cyber court. The cyber court was to have concurrent jurisdiction with Michigan's state circuit courts over certain commercial cases with an amount in controversy over $25,000. All participation of the judges, court personnel, parties and other interested parties would be heard via videoconferencing, including conferences and all aspects of trial proceedings. All matters brought before the cyber court were to be decided by a judge, not a jury. Defendants, however, were given the right to move the action to a circuit court if they wished. The proposed system, including infrastructure and setup, was not extremely expensive, even in 2002, when the tech was not as sophisticated or as cheap as today. Unfortunately, though, the project received substantial press at the time, its meager funding was cut, and the once promising domain of http://www.michigancybercourt.net is now a traffic-forwarding page for a California law firm.
Videoconferencing is already widely accepted in the criminal courts. Criminal defendants can be compelled to appear in court only via videoconferencing for a variety of parts of their trial. Virtual criminal courts are beyond the scope of this article, since they raise additional due process concerns. It is worth noting that courts have held that inmates may be restricted to appearing via videoconferencing even in civil actions. In Bustillo v. Hilliard, it was permissible that the imprisoned defendant participate in his civil rights action only via videoconference because the plaintiff "testified, presented evidence, examined adverse witnesses, looked each juror in the eye, and so on," and he was unable to "identify anything he was unable to do over the video link that he could have accomplished in the flesh," which is a nice endorsement of the virtual courtroom from the US Court of Appeals for the Seventh Circuit.
Many state courts make extensive use of videoconferencing in civil trials with substantial success. Delaware County, Pennsylvania, claims to save $271,000 per month in court costs from its use of teleconferencing in civil and criminal proceedings.
Areas with sparse populations or hard-to-access topography have additional incentives to virtualize their courts. Australia has been a leader in adopting videoconferencing in the courtroom. "There is no need now for the judge, witnesses and advocates to be in the same room," said South Australia's Chief Justice John Doyle last year. Western Australia enacted evidence laws that give courts broad discretion to determine when "evidence be taken or a submission be received by video link or audio link." One practical use of teleconferencing is that "[a] magistrate who has finished their local list for the day can also be linked to a busier court elsewhere to assist with finalising its caseload." This seems a very clever way of making more efficient use of judicial resources.
Chances are that most federal courts today are already equipped with videoconferencing and ECF systems. Assuming they are, the start-up costs for a virtual civil court system are merely administrative.
Like the Michigan cyber court project, it would probably be wise, at first, to limit the type of cases that the virtual court would hear. Cases that originate in cyberspace, such as online piracy or defamation, would be a good fit. A relaxed standard for personal jurisdiction might apply. For instance, plaintiffs could bring a suit in any jurisdiction that has a rational connection to the alleged harm. Defendants could then make any required appearances in the action at their local federal district court or other designated videoconference facilities. The judge might be at a third location. All parties involved would stand to benefit from the increased efficiency and convenience of such a system. If such a system, limited to Internet cases, were to meet with success, perhaps eventually our notions of personal jurisdiction in all cases might evolve too.
Tony Niescier holds a bachelor's in English Literature from Fordham University. Apart from working as a research assistant at the Samuelson-Glushko Intellectual Property and Information Law Clinic, Niescier is also a member of the Fordham Intellectual Property, Media & Entertainment Law Journal.
Suggested citation: Tony Niescier, Virtual Courts and the Future of Personal Jurisdiction, JURIST - Dateline, Mar. 26, 2012, http://jurist.org/dateline/2012/03/tony-niescier-personal-jurisdiction.php.
This article was prepared for publication by Leigh Argentieri, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org