30 September 2010

Nerdy Internet Link Sausages

Like you're surprised that I'm a nerd, especially concerning the 'net itself?

  • Maybe bad scientific awareness is related to bad science reporting (and writing in general). It doesn't help that most "science reporters" are, themselves, barely science-literate (if at all); it doesn't help that their audience is barely science-literate (if at all); it doesn't help that most scientists are barely literarily literate (if at all); and combine these three factors, and one has a positive feedback loop that disproves the impossibility of a perpertual motion machine. Anybody remember "Trees cause pollution"?
  • Danica Patrick might want to consider skipping any races in Illinois to help keep her sponsor GoDaddy out of court in Illinois... although after yesterday's opinion in uBid, Inc. v. GoDaddy, Inc., No. 09–3927 (7th Cir. 28 Sep. 2010) (PDF), even that probably isn't good enough. This is a decision on personal jurisdiction that warms my civil procedure nerd heart, both because it's a cautionary tale for the 'net and because the result was so damned obvious. And relies on porn.

    Quick refresher: Personal jurisdiction concerns whether a particular court has the authority to impose its judgment on a particular defendant in particular circumstances (the plaintiff assents to that jurisdiction by filing suit). That requires either two or three things: Either minimum contacts plus consistency with traditional notions of fair play if the contacts are so pervasive or of such a nature that any claim would be proper (general personal jurisdiction), or minimum contacts plus consistency with traditional notions of fair play and sufficient relationship between the contacts and the cause of action that it's appropriate to hear that cause of action (specific personal jurisdiction). Either general or specific personal jurisdiction is good enough, and specific is a subset of general: If one finds general personal jurisdiction, one need not consider specific.

    In any event, GoDaddy is incorporated in Arizona; maintains its administrative operations in Arizona; and, in its customer agreements, selects Arizona law and Arizona courts. (GoDaddy also claims that all of its servers are in Arizona, but this is not correct; it didn't help this time, in any event.) uBid is an Illinois-based 'net auction site that sued GoDaddy for cybersquatting on similar domain names, in Illinois federal court. GoDaddy challenged the personal jurisdiction of the Illinois courts over it, and won in the trial court. Under two similar, but parallel, rationales, the Seventh Circuit reversed, finding that there was specific personal jurisdiction in Illinois courts over GoDaddy.

    In addition to the granddaddy of personal jurisdiction decisions — International Shoe — the Seventh Circuit relied upon two more-recent lines of decisions. The majority (Judge Hamilton and Judge Flaum) relied on a porn feud between Hustler and Penthouse, which concerned whether a libel suit by a Penthouse officer against Hustler could be heard in a New Hampshire court (Keeton v. Hustler); the Supreme Court found in that case that the ten thousand (!) copies distributed in New Hampshire were enough to support personal jurisdiction. The concurrence (Judge Manion) relied on a slightly more general decision concerning actions in one state knowingly and purposefully directed into another state (Calder v. Jones), where the Supreme Court found that such purposeful direction was sufficient to support personal jurisdiction. I was a bit surprised that nobody cited Asahi Metal, the reasoning of which is directly on point and came from an Arizona-based justice (Justice O'Connor), but no matter: The court reached the right decision, finding that GoDaddy's pervasive presence advertising and providing its domain registration services to Illinois residents — including, at least purportedly (because GoDaddy does no verification of customer information), a number of Illinois typosquatters against uBid — was sufficient to support specific (but not general) personal jurisdiction over GoDaddy.

    Why does this matter to authors? Whether using the specific reasoning of Calder or the specific reasoning of Keeton, what we're left with is the conclusion that if one has reason to know that the target of one's expression is in state X, one can expect to defend against any lawsuit related to that expression in the courts of state X. On one hand, this is a fair result, at least in the abstract; it makes sense that if I were hypothetically to call Minnesota's Representative Bachmann an insane bigoted loon, I should expect to be hauled into a Minnesota court (although I have certain other defenses available to me, such as "hyperbole," "opinion," "actual malice," and "truth"). On the other hand, though, the purported "regulation" of the legal profession makes this result fundamentally unfair when applied to individuals: Protectionist "local counsel" rules will tend to screw individual defendants, both substantively and financially, when dragged into court halfway across the country (or even just over a river). Thus, as with all decisions on jurisdiction, there's both good and bad lurking here.

  • Why the Comcast/NBCU merger? As Professor Crawford points out, it's the advertising dollars: Comcast's ad revenue last year was higher than the combined total of the top 100 only two decades ago. Don Draper must be smiling. Somewhere.
  • Regression toward the mean: It may be a valuable explanatory scientific theory with no realistic alternative, but that doesn't make it a good thing all the time. Although later down the same page on the same blawg, one must wonder if we're regressing toward mean vegetables or merely indicting the way we prepare them...