Facebook Fails In Its Argument That Faceporn Is Under US Jurisdiction For Using A .com

from the jurisdictional-mess dept

Facebook sued Pedersen and Retro Invent, who are based in Norway and run the "Faceporn" site. "Faceporn" is a website which features pornographic content and "allows its users to create profiles, join groups, upload photos and video, and conduct live chats." Facebook served Retro Invent using the Hague Convention, and moved for default judgment.

The court, on its own motion, raises the issue of personal jurisdiction, and orders Facebook to show cause why the lawsuit should not be dismissed for lack of personal jurisdiction. Facebook argued in its filings that Faceporn targets a United States audience by using a ".com" address, and by virtue of the fact that Faceporn is an interactive website with 250 users in California and 1000 users in the United States. The court says that these allegations alone are not sufficient to satisfy the standard for personal jurisdiction:

not all material placed on the Internet is, solely by virtue of its universal accessibility, expressly aimed at every state in which it is accessed.

(citing Mavrix Photo, Inc. v. Brand Techs., Inc.).

Given the numerous foreign regulators who are taking aim at Facebook, it seems foolhardy for Facebook to argue that use of a TLD along with local registered users confers jurisdiction in a foreign country. Perhaps this argument won't directly tag Facebook because it is already subject to jurisdiction in every country where it uses the TLD, but it's not a great precedent for other internet companies. I'm somewhat surprised Facebook made this argument. Clearly, it's not an internet start-up any more.



Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    G Thompson (profile), Dec 7th, 2011 @ 8:21pm

    FaceBook takes on FacePorn, results in FacePalm

    Hmmm I know there's a joke in there somewhere for eejit :)

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Dec 7th, 2011 @ 8:21pm

    Zuckberg is just asking for it to be sued and found guilty in other countries and not be able to travel abroad, just like Warner Bros executives will never set foot on France again.

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    Jay (profile), Dec 7th, 2011 @ 8:25pm

    Re:

    Wait, why can't Warner Bros set foot in France?

     

    reply to this | link to this | view in thread ]

  4.  
    icon
    average_joe (profile), Dec 7th, 2011 @ 8:25pm

    Venkat post? Awesome! TD stock just went up.

    250 users in California isn't minimum contacts/purposeful availment in California? I'm not sure I buy that. Nor do I understand the "something more" requirement. If California's long arm statute is coextensive with the Due Process Clause, then what "more" than minimum contacts is needed to establish personal jurisdiction?

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    quickbrownfox, Dec 7th, 2011 @ 8:27pm

    Reminds me a little of North Face vs. South Butt, and is every bit as silly.

     

    reply to this | link to this | view in thread ]

  6.  
    icon
    G Thompson (profile), Dec 7th, 2011 @ 8:44pm

    Re:

    Facebook argued that a .com was specifically targeting by virtue of it being a US TLD

    The court stated that this was not correct since self evidently the ".com" TLD is now used everywhere and is ubiquitous, and therefore the original purpose of the .com TLD which was to only be for commercial ONLY USA entities is nullable and that the average moron in a hurry has no inclination to think that a .com means that the entity has to reside in the USA only anymore.

    They were NOT specifically targeting the US, and if you do a quick calculations of the percentage of actual USA Faceporn users compared to the amount of USA FaceBook users you are in the realm of less than even de minimus.

    They weren't specifically targeting US citizens by any stretch of the imagination and the confusion that might of been caused is so minute as to be indistinguishable from zero.

    Just because CA has a so called long-arm statute does not mean it can be used for the ridiculous and absurd. I'd also hazard a guess that the "something more" would be what a reasonable person would expect and seems that this court has strangely (for CA anyway) found some reasonable persons. Whodathunkit

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    abc gum, Dec 7th, 2011 @ 8:54pm

    Uh-oh the folks over at buttbook better batten down the hatches - here comes Zuckerborg. Prepare to be assimilated, resistance is futile.

     

    reply to this | link to this | view in thread ]

  8.  
    icon
    Joseph Kranak (profile), Dec 7th, 2011 @ 9:51pm

    Bad business strategy

    You've pointed out so many times how companies pursue short-sighted legal strategies, which have the potential to (and sometimes do) come back to bite them in the butt, and I really think in all these cases it's because the people deciding to pursue these lawsuits are not business-minded or customer-service-minded people, they're lawsuit-minded people (namely, lawyers). Many businesses, I think, give way too much leeway to their legal teams to unilaterally pursue stupid lawsuits and legal arguments.

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Anonymous Coward, Dec 7th, 2011 @ 10:26pm

    So did facebook fall on its face? Perhaps it needs to hit the (law) books some more.

     

    reply to this | link to this | view in thread ]

  10.  
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    keiichi969 (profile), Dec 7th, 2011 @ 10:27pm

    Why not?

    it seems foolhardy for Facebook to argue that use of a TLD along with local registered users confers jurisdiction in a foreign country



    Why not? Works for ICE/DHS.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Anonymous Coward, Dec 7th, 2011 @ 11:07pm

    Re: Re:

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Adric, Dec 7th, 2011 @ 11:30pm

    Re: Re:

    .com is international

    .com.us is 'designed' for the United States

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, Dec 8th, 2011 @ 12:58am

    On the internet there is a lot of buttons.

    Insult button:
    "Lets play horse, I play the front and you be yourself"
    http://www.youtube.com/watch?v=qfWf3nBgKM4

    Fail button:
    http://www.youtube.com/watch?v=897jlnmTYqE

    WTF button:
    http://www.youtube.com/watch?v=eYByo7KPnwo

    Which one do I press?!

     

    reply to this | link to this | view in thread ]

  14.  
    icon
    G Thompson (profile), Dec 8th, 2011 @ 1:31am

    Re: Re: Re:

    Actually it's both.

    The original RFC920 stated in 1984 that the ccTLD of .us should be used (as all other two letter country codes do)

    Though in 1993 the RFC1480 stated it was moot since nearly all registrations used .com, (with .net, & .org coming in a close second) gTLD instead making it seems that .com was only for the USA

    RFC1480 1.2 Top-Level Domains

    The top-level domains in the DNS are EDU, COM, GOV, MIL, ORG, INT,
    and NET, and all the 2-letter country codes from the list of
    countries in ISO-3166. The establishment of new top-level domains is
    managed by the Internet Assigned Numbers Authority (IANA). The IANA
    may be contacted at IANA@ISI.EDU.

    Even though the original intention was that any educational
    institution anywhere in the world could be registered under the EDU
    domain, in practice, it has turned out with few exceptions, only
    those in the United States have registered under EDU, similarly with
    COM (for commercial). In other countries, everything is registered
    under the 2-letter country code, often with some subdivision. For
    example, in Korea (KR) the second level names are AC for academic
    community, CO for commercial, GO for government, and RE for research.
    However, each country may go its own way about organizing its domain,
    and many have.

    There are no current plans of putting all of the organizational
    domains EDU, GOV, COM, etc., under US. These name tokens are not
    used in the US Domain to avoid confusion.

    [Emphasis added]

     

    reply to this | link to this | view in thread ]

  15.  
    icon
    A Guy (profile), Dec 8th, 2011 @ 1:50am

    Re:

    I'll take this one.

    FaceBook gets no love in court after getting worked up viewing FacePorn.

    The resulting FacePalm leaves FaceBook in a sticky mess.

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Anonymous Coward, Dec 8th, 2011 @ 2:15am

    Re: Why not? - ICE?

    yes i was wondering how this affects the ICE stuff too.

     

    reply to this | link to this | view in thread ]

  17.  
    icon
    The eejit (profile), Dec 8th, 2011 @ 4:13am

    Re: Why not?

    Well, thanks to FB for pointing out that a .com TLD isn't just for Americans anymore, so ICE may not have jurisdiction anymore.

     

    reply to this | link to this | view in thread ]

  18.  
    icon
    Marcel de Jong (profile), Dec 8th, 2011 @ 5:07am

    Re: Re: Re: Re:

    Sure, but that RFC is horribly behind the times. For instance, bol.com is a Dutch book vendor, not aimed at the US.

     

    reply to this | link to this | view in thread ]

  19.  
    icon
    average_joe (profile), Dec 8th, 2011 @ 5:47am

    Re: Re: Why not? - ICE?

    yes i was wondering how this affects the ICE stuff too.

    This is a slightly different issue that the domain name seizures. The type of personal jurisdiction being sought here is "in personam" jurisdiction. The court wants Facebook to show why a California court has jurisdiction personally over the defendants who are from Norway. Since the defendants are not actually in California, Facebook will have to show that the defendants reached out to California, establishing minimum contacts with the state.

    With the domain name seizures, the type of personal jurisdiction being sought is "in rem" jurisdiction. Instead of going after the people behind the sites, they're going after the domain names themselves. "In rem" means "in the thing" or "against the thing" in Latin. If the thing isn't located in a particular state, then the court can't exercise jurisdiction over it unless there's minimum contacts.

    So basically in personam and in rem jurisdiction ask the same questions: (1) Is the person or the thing within the state? If so, the court can generally exercise personal jurisdiction. (2) Is the person or thing without the state? If so, then the court cannot exercise personal jurisdiction unless there's minimum contacts with the state.

    Now, where a domain name exists depends on where it's registered. If I register facebookster.com with a registrar in Pennsylvania, suit could be brought against that domain name in Pennsylvania. Suit could also be brought in California where Verisign is located since they are the registrar for ".com" domain names.

    ICE's domain name seizures orders are coming from the court in the Southern District of New York (SDNY). I don't see how that court has in rem jurisdiction over the domain names.

    Take rojadirecta.org for example. The owner is from Spain. They registered through GoDaddy in Arizona. The ".org" registry is in Virginia. And the Rojadirecta servers are in Canada. There's no connection to New York--no minimum contacts that would allow New York to exercise jurisdiction over the defendant domain names. The only connection to New York that the government has claimed is that their investigators in New York accessed Rojadirecta while investigating the case. A unilateral contact like that is insufficient to establish jurisdiction (and I think that differs from the situation here where faceporn has established hundreds of contacts with the state).

    The judges in New York who are signing these seizure warrants for ICE to seize domain names should be asking the government to show how New York has in rem jurisdiction over the domain names.

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Anonymous Coward, Dec 8th, 2011 @ 6:08am

    Re: Re:

    Let me be the first to say ewwww.....

     

    reply to this | link to this | view in thread ]

  21.  
    icon
    average_joe (profile), Dec 8th, 2011 @ 6:13am

    Re: Re:

    Facebook argued that a .com was specifically targeting by virtue of it being a US TLD

    The court stated that this was not correct since self evidently the ".com" TLD is now used everywhere and is ubiquitous, and therefore the original purpose of the .com TLD which was to only be for commercial ONLY USA entities is nullable and that the average moron in a hurry has no inclination to think that a .com means that the entity has to reside in the USA only anymore.


    I haven't read the complaint or anything else in the case, but according to the document embedded above Facebook argued two reasons for finding personal jurisdiction: (1) Faceporn has hundreds of U.S.-based users, and (2) Faceporn targets the U.S. by using a ".com" address. I agree that the second argument is pretty weak, but the first argument could carry the day. The problem for Facebook though is that there's been no discovery for them to get access to the facts that would help prove jurisdiction.

    They were NOT specifically targeting the US, and if you do a quick calculations of the percentage of actual USA Faceporn users compared to the amount of USA FaceBook users you are in the realm of less than even de minimus.

    I don't follow the logic. The ratio of Faceporn to Facebook users is irrelevant.

    They weren't specifically targeting US citizens by any stretch of the imagination and the confusion that might of been caused is so minute as to be indistinguishable from zero.

    I've never been to Faceporn, but I'm not sure how you can say that they didn't target U.S. users. What facts are you basing this on?

    Just because CA has a so called long-arm statute does not mean it can be used for the ridiculous and absurd. I'd also hazard a guess that the "something more" would be what a reasonable person would expect and seems that this court has strangely (for CA anyway) found some reasonable persons. Whodathunkit

    The California long arm statute allows the courts in California to exercise personal jurisdiction to the full extent of the Due Process Clause. If 250 users from California created accounts on Faceporn, thereby entering into contracts with Faceporn, then maybe it's not so ridiculous for California to exercise jurisdiction.

    Of course, the problem there is that those contacts have nothing to do with the trademark claims. Generally, the contacts have to be related to the claim to count, and here that may be missing. I dunno. Without more facts it's hard to say.

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Anonymous Coward, Dec 8th, 2011 @ 6:38am

    Re: Re: Why not?

    My thoughts exactly. Why didn't Facebook just cry to ICE and have the domain seized under trademark infringement? Instead n

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Anonymous Coward, Dec 8th, 2011 @ 6:40am

    Re: Re: Why not?

    My thoughts exactly. Why didn't Facebook just cry to ICE and have the domain seized under trademark infringement? Instead now they set a precedent that may haunt ICE in the future. Unless maybe that was Facebook's intention all along....

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Anonymous Coward, Dec 8th, 2011 @ 6:58am

    Re: Re: Re:

    The courts decision leaves a large empty space that cannot be justified.

    If a business deals with a group of consumers in a marketplace, are they not "operating" in that marketplace, at least for those consumers? Are they not offering the product in that marketplace?

    What the court suggests is that a company can operate from outside of a jurisdiction, and then ignore the rules of that jurisdiction because they are not physically present. By that judgement, it would be advantageous for every company in the US to move their head offices out of the country, and still offer services in the US - because they wouldn't have to follow US law in offering the products, because they are not subject to the local laws.

    It's a failed ruling, because it makes no sense taken to it's logical conclusions.

     

    reply to this | link to this | view in thread ]

  25.  
    icon
    Overcast (profile), Dec 8th, 2011 @ 7:02am

    Ha Failbook - this is a good example of the "Streisand Effect"

     

    reply to this | link to this | view in thread ]

  26.  
    icon
    Overcast (profile), Dec 8th, 2011 @ 7:04am

    But you know - the more I read about Facebook the closer I get to deleting my account there... it really is turning into 'failbook'.

     

    reply to this | link to this | view in thread ]

  27.  
    icon
    average_joe (profile), Dec 8th, 2011 @ 7:09am

    Re: Re: Re: Re:

    I think if the lawsuit arose from the contacts Faceporn had made in California with users, then there would be jurisdiction. The problem is these contacts have nothing to do with the trademark claim (as far as I know), so they don't serve to create specific jurisdiction (and there is no general jurisdiction). But if Facebook is arguing that Faceporn reached out to cause them harm in California, then that would establish minimum contacts under Calder v. Jones. That might be a better argument.

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    Anonymous Coward, Dec 8th, 2011 @ 8:09am

    Re: Re: Re: Re: Re:

    Yup, I agree. But I also think that the court ruling leaves a hole, because there is no other alternative. Exactly how would Facebook protect it's trademarks in this case? Clearly Faceporn is available in the US, and is being used by and marketed (directly or indirectly) to US consumers. Where exactly would Facebook turn to get any legal action?

     

    reply to this | link to this | view in thread ]

  29.  
    icon
    average_joe (profile), Dec 8th, 2011 @ 8:25am

    Re: Re: Re: Re: Re: Re:

    That's a good point. That consideration would factor into the reasonableness prong of personal jurisdiction under World-Wide Volkswagen, I think. It certainly weighs in Facebook's favor.

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    btr1701, Dec 8th, 2011 @ 11:49am

    Re: Re: Re:

    > I've never been to Faceporn, but I'm not sure
    > how you can say that they didn't target U.S. users.

    They didn't really 'target' anyone specifically. They just put a site up on the web, which is accessibly by everyone in the world.

    As the court said, the general accessibility of a web site is insufficient to show that any specific group of people has been specifically targeted.

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    Anonymous Coward, Dec 8th, 2011 @ 8:54pm

    Re: Re: Re:

    Don't be such a prude

     

    reply to this | link to this | view in thread ]

  32.  
    icon
    RonKaminsky (profile), Dec 9th, 2011 @ 11:44am

    Look at the date

    Why on earth did you add emphasis where you did but totally ignore the part which said:
    Even though the original intention was that any educational
    institution anywhere in the world could be registered under the EDU
    domain


    The RFC is stating: .com is designed to be international, but as of 1993 the US has decided to use it exclusively for their commercial entities registration, as is their right. It doesn't say that no other countries could/should follow in the (silly) footsteps of the US and also forgo having national subdomains for commercial entities, using .com instead.

    The fact that, as of 1993, many more US entities used the Internet, and therefore the .com domain, compared with other countries, probably didn't surprise the people who wrote that RFC, nor did the subsequent expansion of international use of the net. Their observations in the RFC do not seem to have any bearing on whether .com should currently be considered international rather than meant for US use.

     

    reply to this | link to this | view in thread ]


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