{1} As the Internet advances and develops as a more acceptable means of global communication and commerce, the issue of personal jurisdiction becomes an area of increasing importance. [1] With more commercial activity occurring on the Internet, businesses and individuals alike must be cautious and prepared regarding their potential liability. [2] By merely creating a web site and placing information and/or goods on the Internet, the party responsible for that web site (the web host) is potentially exposed to worldwide liability. [3] Because the traditional personal jurisdiction cases originate in the pre-Internet era, courts must determine the appropriate tests and analyses for personal jurisdiction based solely on Internet contacts.
Personal Jurisdiction Prior to the Internet
{2} The problem of maintaining an individual's right to due process while exercising personal jurisdiction is one that the judicial system has struggled with for years. [4] The presence of the Internet, and the ease and speed of it's use to conduct business and enter into legal transactions on a global basis only intensify this problem. [5] To apply the principles of personal jurisdiction to the Internet, a brief overview of personal jurisdiction is warranted.
{3} The Due Process Clause of the 14th Amendment to the United States Constitution [6] allows a court to require a non-resident defendant to stand trial only in the forum state where the court properly exercises personal jurisdiction over the defendant. [7] Assuming the requirements of the forum state's long-arm statute are satisfied, a court may assert personal jurisdiction over a non-resident defendant by exercising either general or specific jurisdiction. [8] A court may exercise general jurisdiction over a non-resident defendant only if the defendant is physically present in the forum state or maintains continuous and systematic contacts with that forum state. [9] Specific jurisdiction, however, may be exercised over a non-resident defendant via the long-arm statute of a forum state if the defendant has "minimum contacts" with the forum state in such a way that maintenance of a suit against the defendant does not offend the "traditional notions of fair play and substantial justice" and that the defendant should have or would reasonably have been able to foresee being haled into court in the forum state. [10] Perhaps the key element to finding specific personal jurisdiction is that the defendant must have minimum contacts with the forum state. [11]
{4} The minimum contacts test itself contains three elements necessary to find personal jurisdiction. [12] First, the defendant must have purposefully availed himself of benefits from association with the forum state. [13] Purposeful availment exists when the defendant purposefully directs its action or actions towards the forum state and shows a substantial connection with the forum state. [14]
{5} Second, the claim must arise from the defendant's activities with the forum state. [15] If the defendant's contacts with the forum state are not related to the altercation, then sufficient minimum contacts do not exist and the action against the defendant in that forum cannot stand. [16]
{6} The third element for finding minimum contacts is that the court's exercise of jurisdiction over the defendant must be reasonable. [17] Factors in determining reasonableness include the burden placed on the defendant, the forum state's interest in the outcome, the plaintiff's interests in obtaining relief, the judicial system's interest in a most efficient resolution, and furthering social policies shared by the states. [18] When the minimum contacts analysis is satisfied, due process is also satisfied and the court may exercise personal jurisdiction over the out-of-state defendant. [19]
{7} The Supreme Court in Asahi Metal Industry Co., Ltd. v. Superior Court most recently added a new factor in personal jurisdiction cases. [20] Justices O'Connor and Brennan wrote opinions for two different pluralities. [21] O'Connor reasoned that merely placing goods in the "stream of commerce" was not enough to establish personal jurisdiction over the party responsible for the placement of the goods. [22] O'Connor felt that there must be some additional act by the defendant to evince recognition and willingness to be haled into any court in any forum where the defendant's goods may go. [23] Brennan, on the other hand, thought that the mere act of placing goods in the stream of commerce should be enough for the producer of those goods to be on notice that it might be haled into court in other jurisdictions. [24] The question now is what test is applicable when an individual's sole means of contact with another forum is via the Internet.
Personal Jurisdiction on the Internet
{8} Although the Internet was designed in 1969, [25] prior to the early 1990's it was not a readily accessible or efficient means of conducting business, performing various transactions, or communicating in general. Once the Internet became widespread and even worldwide, courts were faced with challenges regarding the traditional notions of personal jurisdiction. The problem with the Internet is its makeup. In explaining how the Internet is designed, one court recently set out a "legal layperson's" definition of the Internet:
The Internet is not a physical or tangible entity, but rather a giant network which interconnects innumerable smaller groups of linked computer networks . . . . Small networks . . . are in turn connected to other networks in a manner which permits each computer in any network to communicate with computers on any other network on the system. This global Web of linked networks and computers is referred to as the Internet. [26]
{9} It should be easy to see how, when information is placed on the Internet, its inability to recognize geographic borders presents a problem. [27] With such a new and vastly different arena of problems to which courts must apply the traditional principles of personal jurisdiction, some courts looked to advertising cases for assistance. [28]
{10} In the earliest Internet personal jurisdiction cases, courts were reluctant to find personal jurisdiction based merely on computer-related Internet activity and contacts. [29] The early fear was that a finding of personal jurisdiction, without thoroughly thinking out the nature, extent and use of the Internet, may lead to worldwide personal jurisdiction and the imposition of liability due merely to one's presence on the Internet. Shortly afterward, however, courts realized that due to the extensive business use of the Internet, lawsuits asserting personal jurisdiction over out-of-state parties due solely to Internet activity were to become a very real, and very frequent, part of the court docket.
CompuServe:The First Landmark Internet Personal Jurisdiction Case
{11} CompuServe v. Patterson is largely considered to be the first authority to develop an analysis for Internet personal jurisdiction. [30] In CompuServe, the Ohio-based plaintiff and the Texas-based defendant communicated solely via the Internet. In addition, they transacted business over the Internet in matters such as the creation of a shareware agreement and the transmission of computer software. When Patterson demanded $100,000 from CompuServe for trademark infringement, CompuServe filed a declaratory judgment action in Ohio's federal court, declaring that it had not infringed Patterson's trademarks and was not "guilty of unfair or deceptive trade practices." [31] Patterson claimed lack of personal jurisdiction. [32] While the trial court agreed with Patterson, on appeal the Sixth Circuit applied Justice O'Connor's reasoning in Asahi to Internet contacts, thereby creating a framework for integrating cyberspace with personal jurisdiction. [33] The court's holding in CompuServe established the factors necessary to satisfy minimum contacts that are limited to the Internet. [34]
{12} First, the court considered whether Patterson purposefully availed himself of the privilege of doing business in Ohio. [35] The court ruled that Patterson satisfied this requirement by (1) being party to a shareware contract which was governed by Ohio law, and (2) exchanging multiple Internet communications with CompuServe's service in Ohio. [36]
{13} As a second factor to determine minimum contacts via the Internet, the court considered whether CompuServe's claim arose from Patterson's activities within the forum state. [37] While Patterson could have marketed his software via alternative methods, the CompuServe court found that because Patterson limited his software marketing to going solely through CompuServe's service in Ohio, activities within the forum state - from which the cause of action emerged - were established. [38] Additionally, the court found that Patterson's electronic communication with CompuServe in Ohio, in which Patterson accused CompuServe of trademark infringement, also satisfied the requirement that CompuServe's claim came out of the forum state. [39]
{14} Finally, the court considered whether the facts satisfied the reasonableness test. [40] The court found that even though Patterson may suffer a burden by defending a suit in Ohio, the suit was reasonable because (1) CompuServe's interest was $10 million in potential damages, (2) the decision would have a substantial impact on other contracts for providers like Patterson, and (3) Patterson had knowledge that he would benefit from the shareware contract and that it connected him to Ohio law. [41]
{15} The court in CompuServe ruled that Patterson did have minimum contacts sufficient to qualify for personal jurisdiction in Ohio, CompuServe's forum state. [42] In forming its holding, the court analogized the use of Internet activity to placing an object in the stream of commerce, [43] as discussed in Asahi. [44] Because Patterson not only placed his product into the stream of commerce but also entered into a contract with CompuServe, the CompuServe court held there were ample contacts to exercise personal jurisdiction. [45]
{16} Since CompuServe, many cases have emerged concerning Internet personal jurisdiction. While the courts generally have adhered to the CompuServe analysis, incorporating Justice O'Connor's stream of commerce opinion, several tests have developed in order to more accurately and easily determine whether or not personal jurisdiction based on Internet contacts is proper. Many courts have analogized minor activity over the Internet to the mere placement of advertisements in national magazines and have recognized that such activity, without more action on the part of the advertising party, is insufficient to permit personal jurisdiction in the forum state where the advertisement reaches. [46] On the other hand, where the level of interactivity on the Internet increases, so too does the chance of finding personal jurisdiction. [47] Some courts, however, are willing to look for other activity beyond an Internet web site to determine if a party has purposefully availed itself of a forum state's laws and therefore should anticipate being haled into court there. [48] Finally, some courts look to the effects of the actions taken by the defendant to determine whether the forum state "is the focal point both of the story and the harm suffered." [49] These courts tend to examine whether the non-resident defendant intended to cause injury in the forum state and whether that defendant knew that the "effects" of that injury would be felt in the forum state. [50]
Nature of the Web Site Analysis
{17} While case opinions may seem wide-open regarding personal jurisdiction over Internet users, the general trend, first established in Zippo Manufacturing Company v. Zippo Dot Com, Inc., appears to have emerged as the foremost applied analysis. [51] In Zippo, the plaintiff, based in Pennsylvania, was well known for its lighters and held a trademark on the name "Zippo." The defendant, however, was from California and operated an interactive Internet news service. The defendant had registered "zippo" among various Internet domain names.
{18} Upon learning of the defendant's Internet home page, the plaintiff sued the defendant in Pennsylvania for trademark dilution, infringement, and false designation. The defendant moved to dismiss for lack of personal jurisdiction, claiming no other contact with the forum state of Pennsylvania other than via the Internet. According to the defendant, only two percent (2%) of its customers were in Pennsylvania. The defendant had, however, contracted with several Internet access providers in Pennsylvania to promote the news service. [52]
{19} The Zippo court, based on its review of relevant case law, stated that the likelihood that personal jurisdiction can be constitutionally exercised "is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet." [53] Based on this ratio, the court developed a "sliding scale" of personal jurisdiction based on Internet usage:
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 computer files over the Internet, personal jurisdiction is proper. E.g. CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir. 1996). 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 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. E.g. Bensusan Restaurant Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996). 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 jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site. E.g. Maritz, Inc. v. Cybergold, Inc., 947 F. Supp. 1328 (E.D. Mo. 1996). [54]
{20} Using the spectrum that it had just developed, the Zippocourt then held that in the instant case the defendant was "doing business over the Internet" when it conducted electronic online commerce with Pennsylvania residents. [55] By repeatedly and consciously processing Pennsylvania residents' applications, the defendant purposely availed itself of benefits from association with Pennsylvania, thereby permitting personal jurisdiction in that forum. [56] Further, the court stated that had the defendant not wanted to be amenable to jurisdiction in Pennsylvania, the defendant could have simply chosen not to sell its services to Pennsylvania residents. [57] The court therefore ruled that personal jurisdiction over the defendant existed in Pennsylvania. [58]
{21} Analyzing the spectrum of Internet personal jurisdiction, it appears that Zippo has effectively created a more modern test for Internet users while still comporting with Justice O'Connor's opinion in Asahi. It appears that Zippo and the abundance of cases that follow its reasoning and use its spectrum tend to recognize that, due to the vast and instant nature of the Internet, it would be unfair to force Internet users to expect or reasonably anticipate being haled into any forum state where their web content may reach or be reached. Due to the complex and fact specific nature of the Zippo personal jurisdiction spectrum, further analysis is warranted.
"Doing Business Over the Internet" Web Sites
{22} At one end of the spectrum are web sites where the users are actively "doing business over the Internet." The Zippo court referred to CompuServe as an example of this type of interactivity. [59] In CompuServe, Inc. v. Patterson, the Ohio-based plaintiff was an Internet service provider and also facilitated the distribution of shareware through its worldwide network. [60] The Texas-based defendant subscribed to the plaintiff's services and entered into an agreement for the plaintiff to market his shareware. A key ingredient was the agreement between the parties stipulating that Ohio law governed. When the plaintiff later filed suit against the defendant for declaratory judgment in Ohio, the defendant moved to dismiss for lack of personal jurisdiction. [61]
{23} The CompuServe court noted that today there is less of a need for constitutional protection from "inconvenient litigation" due to the greater accessibility to all but the most remote forums. [62] Because of the agreement, awareness, and activity between the parties, the court ruled that personal jurisdiction existed in Ohio over the defendant. [63]
{24} Bensusan Restaurant Corp. v. King [64] represents the line of cases that involves "passive" Web sites. The plaintiff in Bensusan operated a jazz bar in New York City called "The Blue Note" and owned all rights, title, and interest in and to the registered mark for that name. The defendant operated a jazz bar in Missouri by the same name and had a Web page on the Internet advertising for the bar and including contact information in Missouri for tickets. The Web page contained no interactivity with the Internet user, however, and provided no means of purchasing tickets other than by referring the appropriate contact information to interested patrons.
{25} In New York, the plaintiff brought an action against the defendant alleging trademark infringement, dilution, and unfair competition. The defendant moved to dismiss for lack of personal jurisdiction. The threshold issue was whether a Web site with a Missouri telephone number to order "the allegedly infringing product" was an offer to sell the product in New York. [65] In its decision, the Bensusan court stated "the mere fact that a person can gain information on the allegedly infringing product is not the equivalent of a person advertising, promoting, selling, or otherwise making an effort to target its product in New York." [66] The court went on to say that the defendant had done nothing to purposefully avail himself of the benefits of New York. [67] "Creating a site, like placing a product into the stream of commerce, may be felt nationwide . . . but, without more, it is not an act purposefully directed toward the forum state." [68] Distinguishing CompuServe, the Bensusan court held that personal jurisdiction did not exist. [69]
{26} The final, and probably the broadest, group of Web sites under the Zippo spectrum does not necessarily actively do business over the Internet but maintains some sort of user interactivity with the Web host. Maritz, Inc. v. Cybergold, Inc. is indicative of this line of cases. [70] In Maritz, the Missouri-based plaintiff sued the California-based defendant for trademark infringement and the defendant moved for dismissal based on lack of personal jurisdiction. The defendant operated a Web site providing information about upcoming services and maintained a mailing list to promote advertisements to its users. Recognizing that the Internet is a new medium and completely different from mail or telephone, the Maritz court ruled that analogy to these media is "less than satisfactory in determining whether defendant has 'purposefully availed' itself to this forum." [71]
{27} Of the several parts of the "minimum contacts" test for personal jurisdiction, the nature and quality of the contacts, the quantity of the contacts, and the relation of the cause of action to the contacts were considered the most important. [72] As to the nature and quality of the contacts, where the defendant claimed it operated only a passive Web site, the Maritz court determined that there was a significant level of interaction with the Internet user. [73] The defendant's intent was to reach all Internet users, regardless of location. [74] In addition, the defendant "automatically and indiscriminately" responded to all users accessing the Web site, "consciously" deciding to transmit information to all Internet users. [75] The court therefore held that the defendant's contacts were of such a quality and nature to favor personal jurisdiction. [76]
{28} As to the quantity of the contacts, the court found that the defendant had transmitted information into Missouri a number of times, suggesting the defendant purposefully availed itself of the "privilege of conducting activities in Missouri." [77] Finally, as to the relation of the cause of action to the contacts, the court held that the litigation in progress resulted from the alleged injuries that related to or arose out of the defendant's Web site. [78] Therefore, personal jurisdiction was extended over the defendant.
{29} Bolstering its opinion, Maritz went on to note that "while modern technology has made nationwide commercial transactions simpler and more feasible . . . it must broaden correspondingly the permissible scope of jurisdiction exercisable by the courts." [79] The court also determined that the traditional notions of "fair play and substantial justice" did not prevent exercising personal jurisdiction over the defendant. [80] Considerations included the burden on the defendant, the forum state's interest, and the plaintiff's interest in convenient and effective relief. [81] According to the court, the defendant proffered nothing to defeat the court's determination. [82] Other cases have recently followed in the same path as Maritz, holding that personal jurisdiction exists for various reasons when the defendant maintains a Web site involving different degrees of interactivity. [83]
{30} While the Zippo spectrum and the cases discussed supra represent the general trend in establishing personal jurisdiction in Internet cases, other cases have added their own interpretations. Inset Systems, Inc. v. Instruction Set, Inc. involved a trademark dispute between a Connecticut-based plaintiff and a Massachusetts-based defendant. [84] The defendant operated a Web site that, if analyzed under Zippo, fell in the middle-to-passive range. The court, however, concluded that the continuous and enduring nature of a Web advertisement, in addition to accessibility to anyone in any state and the existence of a toll-free telephone number available to anyone in the United States, constituted a purposeful direction of advertising activities toward Connecticut such that the defendant could reasonably anticipate being haled into court there. [85] The court further noted the relatively minimal distance between the states in finding fair play and substantial justice. [86]
{31} While the court in Telco Communications v. An Apple A Day acknowledged the Zippo spectrum, it determined that Inset established a more convincing precedent. [87] Telco involved defamatory press releases placed on the defendant's Web page which, but for Inset, would be characterized as a passive site under Zippo and would not permit personal jurisdiction. According to the court, some further act in the plaintiff's forum state was required and "[w]ithout use of . . . a Virginia facility . . . there would have been no [injury in Virginia]." [88] In addition, the defendants knew that the plaintiff was based in Virginia when the defendants issued the press releases. As a result, the defendants could reasonably have anticipated being haled into court there. [89]
{32} Some courts have employed an "effects test" to determine whether or not personal jurisdiction should be exercised over a defendant. [90] Panavision International, L.P. v. Toeppen is the most recent illustration of this analysis. [91] In Panavision, the California-based plaintiff held registered trademarks to the names "Panavision" and "Panaflex" in connection with movie equipment. [92] When the plaintiff attempted to register "Panavision.com" to obtain an Internet domain name, it was unable to do so. [93] The plaintiff discovered that the defendant, based in Illinois, had already registered that domain name. [94] The defendant stated, however, that he would sell the domain name rights to the plaintiff for $13,000. [95] As it turned out, the defendant had performed this very same routine with numerous other companies, registering their trademark names as Internet domain names and then offering to sell the domain name rights back to the companies, a process known as "cybersquatting." [96]
{33} The plaintiff subsequently filed suit against the defendant in the federal court for the District of California, alleging claims under the Federal Trademark Dilution Act of 1995 [97] and under the California Anti-dilution statute. [98] The district court determined that it had personal jurisdiction over the defendant in California. The defendant appealed.
{34} The Ninth Circuit first considered whether the exercise of personal jurisdiction over the defendant was proper in California. [99] While it found that general jurisdiction was not available since the defendant was domiciled in Illinois and his activities in California were not considered to be substantial or continuous and systematic, [100] the Panavision court applied a three part test to determine if it could exercise specific personal jurisdiction. [101] The court looked at purposeful availment, noting that this requirement is satisfied if the defendant takes purposeful, direct, or deliberate action toward the forum state. [102] Applying purposeful availment to the Internet, the Ninth Circuit reviewed its earlier decisions in Cybersell, Inc. v. Cybersell, Inc. [103] and CompuServe v. Patterson. [104] The Panavision court noted that in Cybersell, its reference to "the effects felt in California" was an application of the "effects doctrine" to determine purposeful availment. [105]
{35} Examining the "effects doctrine" more closely, the Ninth Circuit noted that in tort cases, personal jurisdiction may be attached if the defendant directs his conduct toward the forum state or the conduct has an effect in the forum state. [106] The court went on to say that the instant case was analogous to a tort case. [107] The defendant purposefully registered the plaintiff's trademarks as domain names with the intent of extorting money from the plaintiff. [108] The plaintiff suffered the brunt of the harm in California and the defendant knew that was likely since plaintiff's principle place of business and working industry was there. [109]
{36} The defendant argued that he did not direct any activity at the plaintiff in the state of California nor did he enter the state. [110] The defendant claimed that if any injury occurred from his registration of the domain names, the injury occurred in cyberspace. [111] While the court agreed that the mere act of registering a domain name or posting a web site is not enough to confer personal jurisdiction in the forum state where such actions are felt, there must be something additional that demonstrates that the defendant intentionally directed such acts toward the forum state. [112] The court felt that the defendant's acts of extortion toward the plaintiff satisfied this requirement. [113]
{37} The Ninth Circuit then went on to determine whether the claim asserted arose out of the defendant's forum related activities and whether the exercise of personal jurisdiction over the defendant was reasonable. [114] The defendant's forum related activities satisfied the "effects test" analysis. [115] The court looked at seven factors before determining that exercise of personal jurisdiction over the defendant was indeed reasonable. [116]
{38} The Zippo spectrum tends to be the most widely followed and utilized method of analysis in considering Internet personal jurisdiction. The reason for this seems clear: this test appears to be the most natural progression for the theory of personal jurisdiction as developed from the days of International Shoe up through Justice O'Connor's opinion in Asahi. Due to the expanse and speed of the Internet, Justice Brennan's opinion in Asahi, stating that there should usually be nothing more required to establish personal jurisdiction once an object is placed in the stream of commerce, [117] appears to be much too broad and overreaching. It would mean that as soon as anyone put anything on the Internet, anyone located anywhere who feels they may be harmed by this may sue in their own forum state and that state would be able to exercise personal jurisdiction. That clearly is not in the best interests of the legal system or the users of the Internet across the country and the world. Indeed, such a ruling would retard the growth of the Internet, causing people to fear setting up even passive web sites. As a result, O'Connor's "something more" helps establish the proper goal of exercising personal jurisdiction over those who reasonably should be able to anticipate being haled into court into another forum where their product may reach.
{39} The Zippo test allows courts to determine more clearly whether or not an Internet user should anticipate being haled into the court of another forum. If the web site is passive, then it is like an advertisement only and the defendant should not be expected to account for any location that may see the site. If, however, the web site actively does business over the Internet, then the web host should be considered to be transacting business wherever that site may be reached and therefore should reasonably expect to be haled into other forum states' courts. In the middle ground, the courts will look to the extent of the interactivity. If the web site does not really allow the web host to do anything with the user, then personal jurisdiction probably is not appropriate in other forum states. If the site allows a good degree of interactivity with the user, shy of actively doing business, then personal jurisdiction probably is appropriate.
{40} In addition, some courts will combine the Zippo test with a sort of "totality of contacts" analysis wherein the interactivity of the defendant's web presence will be a factor as well as the defendant's other actions in, with, and/or around the forum state. [118] The courts may consider such additional factors as the existence of wire communications with or within the forum state, external newsgroup or published advertisements, or customers located within the forum state. This means of analysis still satisfies the "something more" requirement rather than merely placing an item out in the stream of commerce.
{41} The "effects test" does not appear very different in principle or ideal from the spectrum analysis that is used by Zippo. The key factor is whether the defendant's actions were aimed directly at or have a direct effect in the forum state. This tends to follow Justice O'Connor's opinion that personal jurisdiction should not be extended without something more than merely placing an item in the stream of commerce. In Panavision, the item placed in the stream of commerce was the defendant's Internet web pages containing the domain names that were trademarks of the plaintiff. The "something more" was the fact that the defendant's sole purpose for creating these web pages was to extort money from the plaintiff in return for the rights to the domain names. In addition, the defendant's intent to extort from the plaintiff injured the plaintiff in its forum state. This test should probably be seen as a parallel to the Zippo analysis rather than an alternative. Some courts have based their decisions on the level of interactivity of the defendant's web site in addition to whether or not their actions had a specific effect directed at and felt in another forum state. [119] Other courts have used the "effects test" as well as looking at the totality of the defendant's contacts. [120]
{42} Whatever the courts use, it appears that the underlying concepts and goals are the same. Mere passive activity does not suffice unless something additional is found or done that would allow the defendant to reasonably expect to be haled into court in another jurisdiction.
{43} While personal jurisdiction evolved up through the 1980's, there really were no major advancements or changes in the way business was conducted or the way people communicated that would cause concern about jurisdiction being arbitrarily sought in alternative forum states. However, with the advent of the Internet, the legal system encountered a whole new world. All of a sudden, it appeared that minor actions within the Internet could possibly expose Internet users to liability in any jurisdiction. The courts were now faced with a new scenario within which to apply an established analysis.
{44} Because of the expanse and speed of the Internet, most courts felt that Justice O'Connor's opinion in Asahi- that something else should be expected in addition to the placement of an item in the stream of commerce - was the most appropriate and applicable analysis to extend to Internet personal jurisdiction cases. The court in CompuServe stated as much. Shortly thereafter, Zippo established a spectrum of Internet interactivity which would aid courts in determining whether defendants had satisfied the necessary additional requirement making personal jurisdiction appropriate. The more passive a web site is, the less likely that personal jurisdiction may be established. The more interactive a web site is, the more likely establishing personal jurisdiction is proper.
{45} While some courts have applied variations to these analyses, the general and commonly accepted trend is to apply a Zippo analysis. Some cases have looked at a defendant's other actions to determine whether or not personal jurisdiction is proper. Factors to consider are additional contacts, location, effects on the plaintiff and the plaintiff's location, and the knowledge and intent of the defendant.
{46} The Zippo test, "effects" test, and the "totality of contacts" analysis appear to be the best ways currently to determine whether or not an Internet user should expect to be haled into court in another jurisdiction due to his presence on the Internet. By examining the totality of the circumstances and not merely where the Internet content is reached, strict liability is avoided. Determining personal jurisdiction using the totality of the circumstances also appears to adequately place responsibility where it should be regarding Internet businesses and active users.