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  • Lexis Nexis Access

    I need to get points to win a contest on Lexis Nexis so anyone with a clear question please ask and I will research it. Be concise and clear and give me the EXCACT terms you want me to search on; it need not be limited to immigration.

  • #2
    Dear Michael ,

    I m very happy to see u this way....u make a great American ... well as u insist...my questions to u...please find it for me...

    1.do u know how many I -751 gets approved in a year? Particularly when they r waiver?
    2.What r the advanced method to deal with peptic ulcers?
    3.why should USA elect president Bush as the president for coming next 4 yrs ?

    now I m only interested in first 2 questions only... u have my e mail... u wrote me before...u can reply me there too or here... and I m not joking around with you so don't take me wrong... I will be happy to read something new in that aspect....Pasha

    Comment


    • #3
      1.do u know how many I -751 gets approved in a year? Particularly when they r waiver?
      - this is not a lexis nexis question

      2.What r the advanced method to deal with peptic ulcers?
      - Tums

      3.why should USA elect president Bush as the president for coming next 4 yrs ?
      - To pi$$ off liberals, the media and Bin Laden and to set the stage for Giuliani to become President in 2008

      Comment


      • #4
        I thought Jeb Bush was going to be nominated for 2008?

        Comment


        • #5
          No Rudy Giuliani is our next president

          Comment


          • #6
            I'd vote for Rudy....too bad George W. doesn't have him as a running mate. If he did, he would be way ahead in the polls.

            Comment


            • #7
              Rudy Guliani is GOD.

              Can't believe I am agreeing with kgb.
              Sweet Madame Belu

              Comment


              • #8
                Glad to see you are now in school, Michael.

                Here's a research question for you:

                It is about slander/libel.

                Can someone on a message board sue another for libel?

                Is the moniker or the actual person being attacked?

                Anyone's knowledge (except you know who's) is greatly appreciated.
                Sweet Madame Belu

                Comment


                • #9
                  Yes, Michael can I sue the Joe Schmoe person for all the libel/slanderous **** that has come out of her in the past 18 months????

                  Comment


                  • #10
                    congrats on finally getting access to lexisnexis. i guess it's better later than never. isn't it nice to have ilw to record such a life changing event.

                    Comment


                    • #11
                      kgb:

                      Shaddup. You know you love me.

                      Where do you get 18 months, dumb a s s?
                      Sweet Madame Belu

                      Comment


                      • #12
                        I do not participate in silly, immature and frivolous discussions. Where is my friend and sergent at arms, booob ?

                        Comment


                        • #13
                          Listen to The King of Grints - Michael !!



                          You can always count on me Michael !!!!

                          What is anonymity?
                          Most broadly, anonymity is a state in which we can disengage our activity from our identities. Dictionaries generally define it as a state of being unknown through lack of identification, personality or individuality. This definition is based on anonymity's origins as a protection for authors and their writings.

                          Why is online anonymity important?
                          Anonymity on the Internet allows people to engage in legitimate and often socially beneficial activities that they wouldn't otherwise engage in for fear of embarrassment, social ostracism, retribution or persecution. For example, communicating under a pseudonym allows individuals to explore their creative side, human rights workers to communicate with each other, employees to "blow the whistle" on harmful corporate practices, members of persecuted minorities (such as ***s) to share experiences, and consumers to search for information on sensitive topics such as sexually transmitted diseases, hair loss, or incest without concern about disclosing their identity to others. The ability to browse the Internet anonymously also keeps personal data about what we do out of the hands of intrusive marketers and governments. As a judge in Ontario noted:

                          "In keeping with the protocol or etiquette developed in the usage of the internet, some degree of privacy or confidentiality with respect to the identity of the Internet protocol address of the originator of a message has significant safety value and is in keeping with what should be perceived as being good public policy." (Wilkins J., in Irwin Toy Ltd. V. Doe [2000] O.J. No.3318, S.C.J.)

                          Are you anonymous on the Internet?
                          Unless you take specific measures to protect your anonymity, you are not anonymous on the internet. This is for two reasons: First, your ISP may keep logs of what sites your Internet Protocol (IP) address visited on the Internet. Your IP address is the identification given to your machine each time you log onto the Internet. This means that your actions on the Internet are not invisible to your ISP. Secondly, the websites you visit may be tracking the IP addresses of their visitors. Although a website owner will not know your particular name through your IP address, it is not very difficult for him to match your IP address to the ISP you are subscribed to.

                          The only way to be anonymous on the Internet is to use technology such as anonymous web browsing, which allows users to surf the Internet with their IP address hidden. See the links section for examples of anonymous browsing technology.

                          Is anonymous speech or action a right in Canada?
                          There is no general right to anonymity in Canada. However, the Supreme Court of Canada has found that individuals have a right to a reasonable expectation of privacy in certain contexts, including the publication of photographs taken of individuals in public (Aubry v. Editions Vice-Versa [1998] 1 S.C.R. 591), and warrantless searches by police (R v. Plant [1993] 3 S.C.R. 281). Courts may also grant a party in a court case the right to remain anonymous if there is a compelling reason such as a threat to one's life or safety (e.g., John Doe v. Roe, [1999] A.J. No. 411).

                          It should also be noted that s.14.1 of Canada's Copyright Act gives authors the right to remain anonymous in connection with the publication of their works.

                          There is little reported caselaw in Canada on the issue of online anonymity. In the Ontario case referred to above, the court ordered an ISP to disclose the identity of a subscriber accused of defamation, noting however that there are important safety and public policy reasons for respecting online anonymity, and that disclosure of subscriber identities "should [therefore] not be automatic upon the issuance of a Statement of Claim": Irwin Toy [2000] O.J. No. 3318 (S.C.J),.

                          On the other hand, in a 1997 administrative ruling, Elections Canada ordered the take-down of a political website because it violated the Canada Elections Act by not disclosing the person responsible for the website.

                          Can you sue someone without knowing their name in Canada?
                          Yes. Such suits are referred to as "John Doe" lawsuits because they substitute the name "John Doe" or "Jane Doe" for the actual defendant's name. In Internet or email situations, a lawsuit can be launched against an unnamed defendant, leaving identification for a later stage of the proceeding. The identity of a defendant can be discovered if any of the following information is known:

                          IP address
                          email provider
                          ISP provider
                          web site host provider
                          anonymous remailer provider
                          The Rules of Procedure of each court set out a process and test for obtaining subscriber information from third parties such as an ISP or website hosts.

                          What are the typical claims behind a request for subscriber information?
                          Typical claims underlying John Doe lawsuits are defamation or infringement of intellectual property rights such as trademark or copyright.

                          What is the process by which someone can get subscriber information from an ISP?
                          A complainant may first attempt to get the subscriber information by simply asking the ISP for it. However, most ISPs will be reluctant to give out this information without a court order. The complainant will then have to issue a claim against "John Doe" (at which point they become a "plaintiff"), and will then have to ask the court for an order requiring the ISP to disclose the identity of "John Doe".

                          The complainant will typically not sue the ISP. Instead, they will attempt to get subscriber information from the ISP as a third party. Each court has its own rules for requesting and obtaining such orders against third parties. (Note that in Canada, these orders are not called "subpoenas" as they are in the United States.) The request will be made via a "motion" (an application to the Court either in person or in writing). Ordinarily, such motions must be served on opposing parties. Again, different rules apply in different courts, but motions must typically be served on those who will be affected by the order - in this case, the ISP and the subscriber. Those who are served must be given an opportunity to be heard before an order is issued. However, because the defendant's identity is unknown, he or she cannot be served. Therefore, in this situation, the ISP will normally be served since the motion is for an order requiring the ISP to disclose the information, and it will be up to the ISP to inform their subscriber of the request.

                          In some cases, the plaintiff may try to obtain an order for disclosure of subscriber ID without giving the ISP an opportunity to respond. The plaintiff will have to convince the court that the order should be given without informing the ISP in advance.

                          In either case, the subscriber may not be aware of the process until the order is made. ISPs are required to comply with court orders for disclosure of subscriber ID.

                          What is the test for a court order requiring disclosure of subscriber ID?
                          In Ontario, courts may order ISPs to disclose subscriber information where it would be unfair to require the plaintiff to proceed to trial without the subscriber's identity. (Rule 30.10). Courts may also allow a plaintiff to cross-examine an ISP in order to get information about its subscriber, as long as the plaintiff can't get that information from another source, it would be unfair to require the plaintiff to proceed to trial without the subscriber's identity, and the examination will not cause undue delay, entail unreasonable expenses for other parties, or result in unfairness to the ISP. (Rule 31.10) In one of the few reported cases on point, an Ontario judge also required that the plaintiff make out a prima facie case against the defendant - i.e., whether the allegations appear, upon an initial review of the facts and law, to have merit - before ordering the ISP to disclose the name of a subscriber. (Irwin Toy v. Doe [2000] O.J. No. 3318 (S.C.J)).

                          Does an ISP have the right to disclose the identity of a subscriber without a court order?
                          Under the Personal Information Protection and Electronic Documents Act (PIPEDA), an ISP is not permitted to disclose a subscriber's personal information without the subscriber's knowledge and consent, except in certain specified circumstances, including: " where required by court order; " where required by law " to certain named "investigative bodies" where the information relates to a suspected breach of law or contract, or " to government organizations who request the information for such purposes as law enforcement, national security, or the administration of law.

                          However, an ISP may have obtained subscriber consent to such disclosure through its terms of service or contract with the subscriber. Whether or not such consent is meaningful and therefore valid in law will depend on how clear and obvious it is to subscribers.

                          What right of action does an Internet subscriber have if their personal information is released without a court order?
                          A subscriber whose identity was disclosed by an ISP without a court order could argue:

                          Breach of contract if the ISP promised in its term of service or otherwise represented that they would not disclose a subscriber's identity, or
                          Breach of the Personal Information Protection and Electronic Documents Act , if the subscriber did not consent to such disclosure.
                          In the former case, the action would be launched in provincial court. In the latter case, the subscriber could complain to the federal Privacy Commissioner under the PIPEDA.

                          I signed a confidentiality/privacy agreement with my ISP that provides that they will not release my information. Doesn't that protect me?
                          Not entirely. Such agreements protect you from voluntary disclosures by your ISP, but not from court orders. If an ISP is served with a court order, they are required by law to disclose your personal information in accordance with the order.

                          What should I do if I receive notice that my ISP has received a motion for a court order to disclose my personal information? What are my rights of action?
                          First you should decide whether you wish to fight to protect your identity, Internet usage records, or whatever else is being sought. You should ask your ISP for a copy of the motion if they haven't already provided one. If you decide to fight it, you should inform the ISP immediately and, if necessary, request that it ask the court to delay arguments on the motion in order to give you time to find a lawyer.

                          How much time would I have to try to fight a motion for a court order?
                          Not very long. Generally, the time lines for responding to a motion for a court order are very short (less than a week). This means that you should contact a lawyer right away if you want to challenge the motion for disclosure of your identity.

                          What should I do if I find out that my ISP has received an order to disclose my personal information?
                          The ISP may be unlikely to fight the court order themselves. If you decide to challenge the court order, you should inform the ISP immediately and request that it delay compliance until you find a lawyer and bring your challenge to the court. In the best of circumstances, however, you will not have more than a few days to bring your challenge.

                          Can someone ask for my identity even if I am not the Defendant in the case?
                          Possibly. Under the Ontario Rules of Civil Procedure (rule 30.10), a plaintiff seeking such disclosure would have to prove that revealing your identity is relevant to their case and that it would be unfair to require them to go to trial without knowing your identity.

                          I don't know whether my ISP keeps track of web sites I've visited or other personal online activity. Could a court order require disclosure of information like that?
                          Yes. Your ISP may keep logs which show the internet usage activity of subscribers by IP address. Unless you use an ISP which destroys its internet usage records (and most ISPs keep them for legal and security purposes), your ISP will have a log of your activities. Therefore a court order could ask for information about what websites you visited.

                          In order to preserve your privacy and to prevent your ISP from knowing what websites you visited, you can use an anonymous browsing service such as Anonymizer.com (see links below). These clients work by routing your internet requests through their own servers, so in effect you have a middle man between you and the website you visit. Most anonymous services delete their internet usage logs daily, so that they cannot be asked to produce them for any court procedures.

                          Cyber Squabbles: Where Do You Sue?
                          If you have a dispute with a Web-based business and going to court is your only remaining option, you'll need to know where to file the lawsuit.


                          If you have a serious legal dispute, you can always settle it at the county courthouse if negotiation or mediation fails. But what happens when you have a beef over an item or service purchased online? Your local state court -- where traditional power usually stops at the state line -- simply may not have the power to make a binding ruling over an online seller based in another state hundreds of miles away.

                          The location of a lawsuit can have an important impact on its outcome. A website operator that is based 3,000 miles away may want to settle the dispute simply to avoid traveling to your state and staying in a motel for a week while defending the suit. There's also the immeasurable effect of the home-court advantage -- that is, suing someone from far away in your hometown, where it's easier to find a competent and reasonably priced lawyer.

                          So where is the proper place to file cyberspace lawsuits? That depends on negotiating a sometimes-complicated legal maze that lawyers call jurisdiction, which translates as a court's authority to decide a particular dispute. Two overlapping issues always arise when determining jurisdiction over a particular dispute. First, is the case the type of subject (fact situation) that the court has the power to hear? And second, does the court have authority over the people or businesses (parties) that are suing one another?

                          Subject Matter Jurisdiction: Does the Court Have the Authority to Hear Your Case?
                          The first question -- whether the case involves a subject that the court is permitted to hear -- depends on whether the case concerns a divorce, contracts, bankruptcy or any one of dozens of other subjects. The point is that not every court can hear every type of dispute. For example, federal and state courts have power over different subjects, and even state courts are often divided into different divisions, such as civil, criminal and family courts.

                          You must file your lawsuit in a federal court if your case arises under the U.S. Constitution or federal laws such as patent, bankruptcy, copyright, maritime, securities or aviation laws. But unless your dispute involves one of these relatively few issues where federal courts have exclusive subject matter jurisdiction, you can file it in a state court. That's because state courts have "general" jurisdiction and can hear any type of case not exclusively delegated to the federal courts. There is one type of case where you can file in either state or federal court -- that's a lawsuit known as a "diversity" suit, between citizens of different states where the subject matter of the dispute (the contract or injury) is more than $75,000.

                          So why not just sue in federal court in your area for $75,000 or more to get around any state jurisdiction problems? The answer is because the federal courts follow state personal jurisdiction rules (discussed below) in diversity cases. The result is that even if you are in federal court you will still have to prove personal jurisdiction based upon the state law in which the federal court is located.

                          Personal Jurisdiction: Does the Court Have Authority Over the Parties Involved in the Dispute?
                          No matter what the subject, a court will not hear your case unless it has personal jurisdiction over all the parties involved. Having personal jurisdiction means that the court has the Constitutional right (legal power) to make a binding decision over the person doing the suing (the plaintiff) and the person being sued (the defendant). Obtaining personal jurisdiction over the plaintiff is never a problem because the plaintiff places himself under the court's power (consents to jurisdiction) by filing the lawsuit. It's the defendant -- who in most instances hates the idea of being sued -- that tries to claim that the court in question lacks personal jurisdiction over him.

                          Usually it's no problem to assert jurisdiction in a local court over a defendant who resides or operates a business in your state. That's because state and federal courts always have personal jurisdiction over state residents. But when the defendant's principal residence or place of business is not in the state where the lawsuit is filed (often called "forum state") you can only haul them into court there if there is a meaningful connection or contact between the defendant and the state where the suit is filed.

                          In the world of the Internet, what this amounts to is that if the cyber bad guy you want to sue doesn't live in or operate a business in your state, owns no property there, and there are no other meaningful connections with that state (more on this below), it means that it's unlikely that a local court will have personal jurisdiction or power over that person. If you want justice, you'll probably have to file your lawsuit in a court in a state where the defendant lives or operates a business.

                          Okay, so much for the basics. As with everything in our legal system, there are a few additional complications. Specifically, laws known as long arm statutes describe a number of situations where a state's personal jurisdiction can be extended beyond state lines. Let's look at how and why these statutes can be so important to Web-based lawsuits.

                          "Gotcha" Jurisdiction
                          A court can obtain personal jurisdiction over an out-of-state defendant who visits the state provided that, during the visit, the defendant is properly served with a summons and complaint (the documents that provide notice of the lawsuit). Also known as "gotcha" jurisdiction, this method of acquiring personal jurisdiction is somewhat similar to playing tag.

                          EXAMPLE
                          Sam, a Nevada disc jockey who operates a rock memorabilia site, defrauded Alice, a resident of Buffalo, New York. She learns that Sam is visiting New York City for an Internet convention, so she sues Sam in New York's state court. She hires a process server who hands Sam the summons and complaint while he is standing at his sales booth at the convention.



                          Causing an Injury Within the State
                          An Internet business can also be subject to jurisdiction for purposefully causing an injury in the state. This principle is derived from a series of cases in the 1930s, when state courts began to claim jurisdiction over non-residents who entered the state, caused an accident and left -- for example, a motorist who causes a car crash in Kansas before returning home to Oklahoma can be sued in Kansas. The same rules apply for "accidents" on the information highway.

                          If someone uses the Internet to cause an injury in one state, the person causing the damage may be hauled into court in the state where the injury occurred. In cases where the connection between the activity and the injury is not completely clear, courts also look for evidence that the activity was "purposefully directed" at the resident of the forum state or that the person causing the injury had contacts with the state.

                          EXAMPLES
                          In one case, a New Mexico software company sent defamatory email and made defamatory Web postings about an Arizona company. An Arizona court claimed personal jurisdiction because the defamatory statements were intentionally aimed at an Arizona business and caused an injury (defamation) within the state. EDIAS Software Intern. v. BASIS Intern., Ltd. 947 F. Supp. 412 (D. Ariz. 1996).
                          In another incident, Matt Drudge of The Drudge Report, a gossip website, made alleged defamatory statements about a Washington D.C. resident on the Drudge Report website. Although Drudge lives and writes his column in California, a court ruled that he was subject to personal jurisdiction in the District of Columbia because the injury occurred in the District of Columbia and Drudge had the following contacts with the state: Drudge personally emailed his column to a list of District of Columbia email addresses; Drudge solicited contributions and collected money from District of Columbia residents; Drudge traveled to the District of Columbia twice to promote his column; and D.C. residents systematically supplied Drudge with the fodder for his business -- gossip. Blumentahl v. Drudge, 992 F. Supp. 44 (D. DC 1998).




                          Minimum Contacts
                          Another means by which a court can claim personal jurisdiction is known as "minimum contacts" and is originally derived from a Supreme Court case, International Shoe v. Washington, 326 U.S. 310 (1945). "Minimum contacts" refers to the fact that a business or person with sufficient contacts with a particular state can be dragged into court there even though they don't live in that state or base their business there. Usually, any substantial presence in the state will justify personal jurisdiction -- for example, if a business regularly solicits business in the state, derives substantial revenue from goods or services sold in the state or engages in some other persistent course of conduct there.

                          EXAMPLES
                          Here are two examples of how the minimum contacts standard has been applied to cases involving the Internet.

                          In the first case, a Pennsylvania court was able to obtain personal jurisdiction over a California Internet service provider that had 3,000 Pennsylvania subscribers. The act of processing the Pennsylvania applications and assigning of passwords was sufficient to demonstrate the minimum contacts needed for personal jurisdiction. Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa 1997).

                          In another state, a Texas court claimed personal jurisdiction over an out-of-state online gambling enterprise because the gambling operation entered into contracts with Texas residents to play online gambling games, sent emails to the Texas residents and sent winnings to Texas residents. Thompson v. Handa-Lopez, Inc., 998 F. Supp. 738 (W.D. Tex. 1998).




                          The concept of "minimum contacts" can get tricky when it involves the Internet. Courts and legal scholars are of the opinion that it is unfair to make every website owner subject to personal jurisdiction in every state simply because the site is viewable there. Thus an Idaho-based consultant who has clients in three Western states could not be sued in Rhode Island just because Rhode Islanders can view his website.

                          State and federal courts have adopted a sliding scale for measuring how much contact with a state's residents is sufficient to give that state's courts personal jurisdiction to hear a lawsuit. At one end of the scale are sites that merely post information without making sales or otherwise doing active business, called "passive sites." Passive sites are unlikely to incur personal jurisdiction -- except in the state where their owner resides or does other business -- because there is less contact with the state where the lawsuit is filed (the forum state). At the other end are sites over which credit card sales or other active business is conducted, called "interactive sites." These sites are more likely to satisfy the minimum contacts requirement. Here are some examples of how the scale is applied:

                          No Personal Jurisdiction
                          Example 1: A website designer posted a site describing his services but did not allow customers to purchase services online, and did not include a toll-free number to encourage business. A user of the site in a state other than the one where the designer lived filed a lawsuit in the user's home state. The site was considered passive, with insufficient contacts to the user's state.
                          Example 2: A Minnesota website did not sell its nutrition products directly over the Web, but instead directed consumers to email the company's distributors. When a Texas company sued in Texas for patent infringement, the site was considered passive, with insufficient contacts to Texas to give the court personal jurisdiction over the defendant.
                          Personal Jurisdiction
                          Example 1: A California man running a website called "nfltoday.com" earned revenue from his website through advertising, specifically through the sale of sports betting ads. The site was generating substantial income through interstate commerce and was disrupting marketing efforts by the National Football League in New York. When the NFL sued for trademark infringement (both parties were using the trademark "NFL" for football related services), a court determined that the site was not passive and had sufficient contacts to New York state.
                          Example 2: A New York charitable foundation used its website to seek contributions from users via email or a toll free number. The foundation also placed an ad in The Washington Post newspaper. When another charity sued for trademark infringement, a court determined that two factors demonstrated sufficient contacts for personal jurisdiction in the District of Columbia: the New York foundation's site and the newspaper advertisement both directly solicited donations from District of Columbia residents.
                          Example 3: The Mayo Clinic website was used to solicit medical business from Texas residents. Specifically, Mayo provided directions for doctors to refer patients to the clinic, provided a toll-free number and had treated approximately 1,000 Texas residents in the five years preceding the lawsuit. The site was considered to be interactive with sufficient contacts to Texas (the forum state) to justify personal jurisdiction in a Texas court.
                          Consent
                          A court can obtain personal jurisdiction if both parties consent to it. For example, a defendant may consent to the court's jurisdiction by filing a response to the lawsuit with that court. As a condition of incorporating or doing business in the state, a company is often required to consent, in advance, to personal jurisdiction in the state and to provide the Secretary of State with an agent to accept service of process.

                          Along these same lines, you may grant consent by signing a contract that has a provision requiring you to agree in advance to the personal jurisdiction of a state. For example, a California website developer may sign an agreement with a New York company that contains a clause stating: "The parties consent to the exclusive jurisdiction of the federal and state courts located in Nassau County, New York, in any action arising out of or relating to this agreement. The parties waive any other venue to which either party might be entitled by domicile or otherwise. If either party wants to sue, the case will have to be brought in Nassau County, New York." Just three states -- Montana, Idaho and Alabama -- refuse to recognize such clauses.

                          You also might grant such consent to jurisdiction when transacting business at a website or when purchasing software. Many sites and software manufacturers insert jurisdiction provisions in a "click-through," or "click-wrap" agreement -- the terms that a customer accepts by clicking "I accept" or "I agree" when placing an order or installing software. Courts are more likely to enforce a jurisdiction provision if the user affirmatively indicates consent -- for example, clicks "I Agree." Courts are less likely to enforce a jurisdiction provision if the user can complete the transaction or install the software without communicating consent (known as a "browse-wrap" agreement).

                          What If a Cyberspace Merchant Sues You?
                          The rule that you can be sued in a remote state if you have certain minimum contacts with it applies to a shopper or Web user just as it does for businesses. But courts have ruled that if your only contact with an out-of-state online catalog company is an occasional purchase, that by itself is not enough to permit the catalog company to drag you to the distant state's court. For example, a company based in Florida operated an airline reservation website. When a New York user defaulted on an airline ticket purchase, the company sued the user in Florida. A court ruled that the user's only contact with Florida was this one electronic purchase, and that this contact was not enough to establish personal jurisdiction in Florida. In short, if the Florida company wanted to sue the New York resident, they would have to do it in New York. Pres-Kap, Inc.v. Sys. One, Direct Access, 636 So.2d 1351 (Fla. App. 1994), review denied, 645 So.2d 455 (Fla. Sup. Ct. 1994).

                          International Rules
                          State and federal courts have personal jurisdiction over foreign citizens or corporations if those persons meet the minimum contacts rules. That is, a foreign business must have substantial economic ties to the forum state, such as operating an office or website, to fall within a court's jurisdictional power.

                          Even when personal jurisdiction is established, a bigger problem when it comes to foreigners may arise when attempting to collect your winnings from the lawsuit, known as "enforcing the judgment." Enforcing judgment against out-of-state residents is difficult enough -- you usually have to apply to a court within the defendant's state to have the judgment honored. But it can be more difficult to enforce a judgment against a foreign citizen or company unless the citizen or business has some assets in your state that can be attached such as real or personal property.

                          Suggestions for E-Commerce
                          Because obtaining personal jurisdiction over out-of-state individuals and businesses can be difficult, and collecting a winning judgment may be even tougher, here are some practical suggestions for dealing with e-businesses:

                          Use credit cards for purchases whenever possible. For purchases over $50 that you make within your home state, credit card companies have a dispute resolution procedure that bypasses litigation -- and pesky personal jurisdiction problems. Since the law is unclear as to whether online purchases qualify, you may have to assert that, when making the purchase via your home computer, you were making the purchase within your home state. Regardless of the federal law, many credit card companies offer dispute resolution procedures without the in-state limitation. Check the back of your credit card statement for information about your card company's policies.
                          Always investigate the other party before taking any legal action to see if facts justify suing in your state. For example, check with your state's Secretary of State to determine if the company is licensed to do business in the state and check to see if the business has a physical presence in your state, as would be true if they operate a warehouse, store or office. If so, it will be easy to establish personal jurisdiction. If your investigating shows few contacts, it may not be worth pursuing the matter in your state.
                          If you enter into significant contracts with out-of-state companies, try to avoid contract provisions that require you to waive personal jurisdiction in your state or require that you submit yourself to jurisdiction in a distant state. Attempt to have this provision eliminated or, as a compromise, rewrite it so that the parties consent to personal jurisdiction in each party's home state. That way, if the other party files the lawsuit, you'll have to travel, but if you file the lawsuit, you can bring it in your local court.
                          If your dispute is substantial (more than $25,000) and personal jurisdiction is unclear, consider hiring a lawyer and filing a lawsuit in the cyber-defendant's home state. It may prove more efficient than battling over jurisdiction and later attempting to collect an out of state judgment.
                          When Is an ISP Liable for the Acts of Its Subscribers?
                          In the United States, two federal laws provide a powerful shield for ISPs that follow the rules. Here's how they work.


                          Everyone who hops on the Internet or posts a website has to affiliate with an Internet Service Provider (ISP), a company that acts as a gatekeeper for access to the Web. An ISP can range in size from America Online (AOL), with millions of users, to a small Mom & Pop business with a server in the garage. In effect, an ISP is a combination telephone company and worldwide public-access television station allowing a subscriber to say or sell anything.

                          But what happens when a subscriber to an ISP behaves badly and causes an injury to an unsuspecting third party -- say, by copying someone's music without authorization or making a libelous statement? Is the ISP responsible for the behavior or actions of its subscribers? Can the victim of an online injury argue that even though the ISP is not the direct cause, it can be sued because it knew of the activity, encouraged it, profited from it or had control over it? Obviously, there's often a strong motivation to make such an argument because adding an ISP to a lawsuit provides a defendant whose pockets -- if not always deep -- at least jingle.

                          The Controversy
                          Those who want ISPs to be financially responsible argue that ISPs are publishers like newspapers or magazines and must take responsibility for the material on their servers. On the other side, the ISPs argue that they are like telephone companies -- simply carriers that provide a means of sending information. So far, Congress and courts have favored the ISPs' position and provided guidelines that permit responsible ISPs to avoid liability for the millions of bits of digital information passing through their portals.

                          Start by understanding that lawsuits against websites and the ISPs that host them tend to fall into two categories: copyright infringement and defamation. A lesser number of lawsuits have also been brought for claims such as distribution of obscenity and negligence. In short, we are worried about a fairly small number of legal claims.

                          Copyright Infringement
                          Online copyright infringement occurs when a copyrighted work -- such as a song, movie, artwork or text -- is copied, modified, displayed or performed without authorization of the copyright owner. (To learn more about the essentials of copyright law, see the Copyright Basics FAQ in the Copyright area of Nolo's Legal Encyclopedia.)

                          In the early days of the Internet (1995-1998), angry copyright owners tried using two theories against ISPs:

                          the ISP contributed to the infringement ("contributory infringement"), or
                          the ISP supervised and profited from the infringement ("vicarious infringement").
                          Digital Millennium Copyright Act
                          ISPs who claimed they couldn't possibly monitor everything said on hosted websites lobbied Congress for protection and in 1998, President Clinton signed into effect the Digital Millennium Copyright Act (DMCA). Under Title II of the DMCA (17 U.S.C. 511 et seq.), an ISP can avoid financial liability by following the "notice and takedown" provisions, should one of its subscribers offer infringing copy online. These provisions basically state that once an ISP receives notice of the infringement, it must take down the unauthorized material.

                          The requirements for avoiding liability include:

                          the ISP must not obtain financial benefit from the infringement
                          the ISP must not have actual knowledge or awareness of facts indicating infringing transmissions,
                          upon learning of an infringing transmission, the ISP must act quickly to remove or disable access to the infringing transmission, and
                          the ISP must implement a policy of terminating the accounts of subscribers who are repeat infringers.
                          In addition to these and other requirements, the ISP must designate an agent to receive notices from unhappy copyright owners. Since the agent is one of the ISP's keys to avoiding financial liability, it's essential that the ISP promptly notify the U.S. Copyright Office of the name and address of its agent. Assistance in designating an agent is provided by the Copyright Office website at www.loc.gov/copyright/onlinesp. There is a fee of $20 for registering an agent.

                          EXAMPLE
                          Megapuss Records learns that infringing copies of one of its recordings have been posted at a website run by Tom. Tom's website is hosted by MaxiNet. Megapuss notifies MaxiNet's designated agent of the infringing copies. MaxiNet must then either physically remove the infringing copies from its servers or disable access to Tom's site. If MaxiNet takes down or blocks access to the infringing material promptly, it may be shielded from financial liability from either Megapuss or from Tom.



                          The DMCA protections for ISPs extend not only to content that is stored on the ISP servers and storage devices but also to an ISP's "information location tools," which are devices that help a user find or access sites, such as directories, pointers and hypertext links.

                          If an ISP does not obey the DMCA provisions -- for example, by failing to designate an agent or by neglecting to immediately remove infringing copy once notified -- a copyright owner has the right to seek financial damages against the ISP as a contributory or vicarious copyright infringer.

                          Defamation and Other Claims
                          Defamation, also known as libel, is the publication of an untrue statement that causes an injury to the reputation of a person or business. For example, Matt Drudge, publisher of the gossip column, the Drudge Report, stated that Sidney Blumenthal, a confidant of President Clinton, had a history of spousal abuse. The comments were posted at Drudge's website and at America Online, who paid Drudge $3,000 per month for the right to post the column. After receiving a letter from Blumenthal, Drudge and America Online both retracted the statements and issued corrections. Blumenthal and his wife sued Drudge and America Online for defamation. Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998).

                          Communications Decency Act
                          Had America Online been a print newspaper or magazine, it might have owed damages for the injuries caused by Drudge's false statement. Instead, a court dismissed AOL from the lawsuit under the provisions of Section 230 of the Communications Decency Act (CDA), which states that no ISP "shall be treated as the publisher or speaker of any information provided by another information content provider." In other words, the CDA shields ISPs from liability for statements or content from its users. This is true even where -- as in the Drudge case -- the ISP paid the writer for use of the statements.

                          The CDA has proven to be an all-purpose shield for ISP liability. AOL has used it several times to deflect lawsuits. In one case, an individual posted an advertisement on America Online shortly after the bombing of the federal building in Oklahoma City. The ad offered t-shirts and merchandise with offensive slogans that glorified the bombing and affixed the name and phone number of a California man, Kenneth Zeran, who knew nothing about the offer. Shortly after the ad was posted, Mr. Zeran received numerous angry phone calls from persons who saw the ad. Zeran complained to AOL, who removed the ad. However, an individual using a different screen name quickly reposted the ad. Zeran sued America Online for negligence, claiming the service provider had a duty to prevent the reposting of the bogus messages. A court ruled that under the CDA, AOL was exempt from the lawsuit. Zeran v. America Online, 958 F.Supp. 1124 (1997).

                          In a case involving obscenity, an AOL user described and solicited the sale of child ****ography videotapes in an online chat room. Another user, offended by the child ****ography solicitations, sued AOL, claiming that the ISP had a duty to make sure that the service did not facilitate the distribution of child ****ography. A court ruled that AOL was exempt from the claim under the CDA. Jane Doe v. America Online, Inc., 718 So.2d 385 (1998).

                          International Liability
                          Other nations do not share the U.S. approach of absolving ISPs from liability for the acts of their subscribers. In Britain, an ISP was found liable for defamatory statements posted by a subscriber. Britain's High Court ruled in 1999 that an ISP could not claim it was an innocent disseminator of the defamatory statements. Instead, the court viewed the ISP as being similar to a print publisher. ISPs are expected to appeal to British lawmakers for legislation limiting liability for statements by users.

                          In Germany, a court ruled in April 2000 that America Online was liable for a posting of unauthorized music by a user.

                          Conclusion
                          Thanks to two federal laws, the CDA and the DMCA, American ISPs currently have a Teflon coating. Responsible ISPs who meet the provisions of these two laws can repel lawsuits based upon claims of copyright infringement, defamation or related claims.

                          Comment


                          • #14
                            AMERICA - LOVE IT OR LEAVE IT !!!!!!
                            ILW MEMBERS - LOVE MICHAEL OR LEAVE IT !!!!!!

                            Comment


                            • #15
                              I do not see the post; TESTING !!

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