Wednesday, October 10, 2007

A Perfectly Clear Long Arm Jurisdiction Case :: Weldon-Francke v. Fisher, 06CV0386 (14th Texas Court of Appeals Sept. 11, 2007)

I love Internet long-arm jurisdiction cases: they are a mire of how the judiciary deals with a defendant that has made itself available in every forum everywhere all the time all over the globe. No matter how judges grapple with notions of due process, you always are left with the feeling that one party or another got screwed. And it is wonderful to watch old school judges who grew up driving VWs grapple with this new environment, flipping through one failed metaphor after another in an attempt to pigeon-hole what would be “fair” on the Internet. There are no easy or clear cases on the sliding scale of Internet long arm jurisdiction.

Except this one.

When last we visited Internet long arm jurisdiction, we reviewed a case where a Louisiana court concluded that the advertisement on eBay by a Texas residence of a vehicle, which was delivered in Texas, and which broke down in Texas, and where defendant had no further described contacts with Louisiana other than a couple of phone calls to plaintiff, was sufficient to sustain minimum contacts required for long arm jurisdiction (in contrast to most other eBay jurisdiction cases which conclude that minimum contacts are lacking). This time it’s Texas’ turn.

It would be interesting to attempt to do a correlation between what portion of a state’s GDP comes from high technology, and the outcome of cases such as these. I’ll just throw out the wild unsubstantiated thesis that the greater a state’s economy can be attributed to high tech, the more high tech friendly the jurisdiction common law is. Louisiana’s GDP for computer and electronic product manufacturing for 2005 was apparently $88m while Texas’ was $18,164m. Hum!

Today’s case is Weldon-Francke v. Fisher, 06CV0386 (14th Texas Court of Appeals Sept. 11, 2007). Plaintiff* believed that defendant* had done a poor job on a trust, and filed suit in a Texas court. Here are the geographic facts: plaintiff contacted defendant, a New Hampshire attorney, in NH, requesting that defendant draw up a trust for a NH property, the work on the trust was conducted in NH, the trust was delivered to plaintiff in NH, and the bill for the legal work was mailed to a NH address. Let’s see, did I cover all the contacts with the state of Texas? Yip, that was pretty much it.

Eight years after the NH trust was drawn up, plaintiff had some concerns about the trust, hired a Texas lawyer, and that Texas lawyer contacted defendant. Defendant obtained permission from plaintiff to talk to the Texas lawyer, and discussed the trust with the Texas lawyer by phone and in a letter.

In specific jurisdiction cases, a court can have jurisdiction over an out-of-state defendant where the dispute arises from defendant’s contact with the state in which the court resides. In this case, plaintiff attempts to argue that defendant’s contact with Texas was that defendant knew that Plaintiff was a Texan. You can almost hear the appellate court judge holding back laughter in rejecting this (got any good caselaw supporting your argument, counselor?).

Next, plaintiff argues that the phone call and letter eight years later was the basis of jurisdiction. Well, at least there was a contact here. But the court concludes “the undisputed evidence shows that [defendant] engaged in these telephone calls and sent these letters to answer questions and respond to requests from the [Plaintiff] and their Texas counsel regarding her 1998 legal services.” Defendant is responding to plaintiff’s query; defendant did not purposefully avail itself of the forum of Texas. The court goes on to note that defendant was not paid for the work involved in responding to the Texas lawyer, nor was defendant engaging in any new legal representation. This dispute involved the trust from eight years ago which was conducted entirely in NH. The Court tosses out specific jurisdiction.

But this blog is dedicated to Internet law. We have not even mentioned the Internet yet. So here it goes: in a feeble attempt to establish general jurisdiction (continuous and systematic contacts with a forum), plaintiffs say, “oh, and defendant has a website that can be read in Texas.” Note interestingly enough that there is no evidence on the record that plaintiff ever actually viewed or relied upon, while in Texas, defendant’s website – just that defendant has a website. Also note that evidence indicates that defendant had no other contact with Texas.

The court sets forth the sliding scale test for long arm jurisdiction which slides from passive websites that just provide information to interactive websites where visitors can do business. The court notes that defendant’s website does not provide for any level of “exchange of information” or “transaction of business” between visitors and the law firm. The defendant’s website merely provides background and promotional information. “But . . . but,” plaintiff argues, the website “extols the Law Firm’s professional experience in federal estate and gift taxation law. Raise your hand, those of you who think this was a persuasive argument.

Outcome: a passive website which provides background information and no interactivity (and where there is no evidence that plaintiff ever read or relied upon the website) is not sufficient minimum contacts with a state to sustain general long arm jurisdiction.

You would think that this provides a certain level of clarity in the sea of uncertainty over Internet long jurisdiction. Here is the paradigm example of the “passive website” along the sliding scale of jurisdiction. On this ground, we know attempted litigation would be frivolous (right?). But remember, this is an appeal. The lower court had managed to conclude that it had both general and specific jurisdiction over defendant!

I wonder if the lower court judge drives a VW?

- - - - - -

*I cheated and simply referred to the plaintiffs and the defendants in the singular.


Wednesday, October 03, 2007

What's on TV?

There have been a number of news articles and blog posts lately suggesting that this is the TV season that broadcasters finally get the Net - that broadcasters are making their content available online. [US networks to stream online free, FT; Do Broadcasters Finally 'Get' the Internet?, Internet News; NBC Cuts Out Video Middleman - NBCDirect will launch in November, DSLReports] So I decided to do a back of the envelop survey of what is out there. Okay, I admit it, I wanted to see if I could find any live hockey feeds. Well, minor league hockey is available on the B2 Network, but not the NHL. While there is a lot of content out there now, probably the big exception is live sports. [Update: NHL Center Ice provides a season subscription to live Windows Media webcasts of all out-of-market games for ~$169. Of course MLS provides a similar season subscription for $10.]

Survey was conducted September 29 - October 3, 2007. Based on what was readily apparent at websites based on a brief visit. Sampled programs where plugin was already embedded, but did not install new plugins. Please feel free to provide additional information. Listed programs represent a quick sampling of what was found.

I am sure there is lots more out there. Drop me a note and tell me what to add to the list - or any corrections that need to be made. This information will be maintained somewhere on the Cybertelecom website.

In 1961, then FCC Chair Newton Minow made his famous speech:

"But when television is bad, nothing is worse. I invite you to sit down in front of your television set when your station goes on the air and stay there without a book, magazine, newspaper, profit and-loss sheet or rating book to distract you--and keep your eyes glued to that set until the station signs off. I can assure you that you will observe a vast wasteland."
Wonder what he would say about the Internet?

Channel Price Plug-In Screen What's Available (sample) Comment
A&E Free Flash Embedded, Scalable Full Episodes: SWAT, Private Sessions, A Man Called Dog, Dog Views Choice. Clips: Sopranos, Faith of my Family, King of South Beach, Two Coreys, Wedding Wife
ABC - Disney Free - Advertisements Move Media Player

Clips: News. Full Episodes: The Bachelor Brothers and Sisters Dancing with the Stars Desperate Housewives Dirty Sexy Money Fashionista Diaries Grey's Anatomy Lost Men In Trees GH Night Shift October Road Private Practice Ugly Betty Voicemail

Only available in US - Also available on AOL Video
- - Disney Channel DXD Free - Advertisements Flash Scalable but not full screen Select Full Episodes: Hannah Montana, American Dragon, Suite Life of Zack and Cody, Emperor's New School, That's So Raven, Kim Possible, The Replacements, Cory in the House
- - ESPN - ESPN Video beta Free - Advertisements Flash Scalable but not full screen ESPN Clips Also available on AOL Video
Animal Planet

See Discovery Channel


Flash Embedded player Black Carpet, Hell Date, Quickie, Comic View, Rap City, Sunday Best, Coming to BET, 106 & Park, Hip Hop Awards, Socially Offensive Behavior Download difficulties
Bravo Free Flash Embedded and Full Screen Clips
Cartoon Network Free - Advertisements Flash Embedded and Full Screen Select Full Cartoons: Ben 10, Bernard, Camp Lazlo, Class 3000, Code Lyoko, KND, Courage, Cow and Chicken, Dexters Labratory, Ed Edd and Eddy, Fosters Home, Grim Adventures, IMP, Johnny Bravo, My Gym Partners a Monkey, Powerpuff Girls, Storm Hawks, Time Squad, Totally Spies, Robot Jones
Flash Embedded and Full Screen Full Saturday Night Hockey - Clips : News - Features
CBS - Innertube Free - Advertisements Flash Embedded and Full Screen Full Select Episodes: Armed & Famous, As the World Turns, Big Bang Theory, Big Brother, CSIs, Guiding Light, How I Met Your Mother, Jerico, Kid Nation, NCIS, Numb3rs, NCIS, Papdits, Pirate Maker, Power of 10, Rules of Engagement, Shark, Survivor, The Unit, Young and Restless. Clips: Late Late Show, Late Show, Each show appears to have only one or two episodes available - Also available on AOL Video
CNN Free - Advertisements Flash Embedded Clips Popup ads
Comedy Central
Flash Embedded Clips: Jon Stewart, Colbert Report, South Park, Sarah Silverman, Drawn Together Also available on AOL Video
CSPAN Free RTSP - Real and Windows
Full programs We had difficulty downloading programs
Move Media Player
Full Episodes: Wild Bunch, Opposites Attract, Girls Go Cruisin,
Discovery Free & $1.99 downloads Move Media Player
Full Episodes: Dirty Jobs, Meerket Manor, LastOneStanding. Clips. Downloads
Fox - Video Central Free Flash
Clips Full Episodes available on AOL Video
History Channel Free - Advertisements Flash Embedded Clips Full Episodes available on AOL Video
Lifetime TV
Flash Embedded and almost full screen Full Episodes: Blood Ties, Lisa Williams, Gay Straight or Taken, Lovespring Intl, Spotlight 25 - Clips
MSNBC Free - Advertisements Flash
MTV Free - Advertisements Flash Embedded and scales Clips. Full Episodes.
NBC Free - Advertisements
Embedded and Full Screen Full Episodes: 30 Rock, Age of Love, Andy Barker‚ PI, The Black Donnellys, Friday Night Lights, Heroes, Last Comic Standing, Late Night with Conan O'Brien, Miss Teen USA 2007, NBC Primetime Preview, Raines, Victoria Beckham: Coming to America Clips: News, Sports
Nickelodeon $1.99 Downloads Flash Embedded and Full Screen Full Episodes: Avatar, Blues Clues, Danny Phantom, Dora, Fairly OddParents, Invader Zim, Jimmy Neutron, Zoe 101 Also available on AOL Video
PBS Free (sponsors logos visible) Real Player or Windows Media Player Embedded Ad Hoc Clips that are not organized in any coherent manner Some PBS shows are available DOD iTunes

Embedded and Full Screen Classic Movies. Clips.
Flash Embedded (Full Screen failed) Full Episodes: Charmed, Closer, Saving Grace - only a few episodes available We experienced download problems which crashed our browser
TV Land Free - Advertisements Flash Embedded Clips. Full Episodes: Andy Griffith Show, Gunsmoke (a few episodes)
Univision Free Flash Embedded Clips
VH1 Free - Advertisements Flash Embedded and Scales Clips, Shows
Weather Channel Free - Advertisements Flash Embedded and Scales Clips
NBA Free - Advertisements Flash Embedded Clips Dowloaded with difficulty
NFL Free - Advertisements Flash Embedded and Full Screen Clips
MLB Subscription Based

Every out-of-market game.
NHL - Versus Free - Advertisements - Flash Embedded NHL Clips - Versus Clips - See CBC
Hockey Minor League AHL $6 per game Windows Media Player
Minor League B2 Networks - Full Games
AOL Video Free and $1.99 and other downloads
Embedded and Full Screen 20th Century Fox, A&E, ABC, AOL, AXN, Biography Channel, CBS, CMT, Comedy Central, FOX, FX, History Channel, In2TV, MTV, Nickelodeon, QVC, Sony, Speed, Spike, TBS, TNT, VH1, WB ,

YouTube Free Flash Embedde and Full Screen Amateur Video
Google Video Free Flash

Embedded and Full Screen

Clips and Full Episodes Difficult to find what is there
Yahoo Video Free Flash

Embedded and Full Screen

Videos and Clips


Amateur Video
Joost Paid downloads Proprietary Download
Wide variety of content Unable to sample video
Amazon Unbox Free and paid downloads Flash Embedded and scalable A&E, ABC, Adult Swim, Animal Planet, BBC, Biography Channel, Bravo, Cartoon Network, CBS, Comedy Central, CMT, CW, Discovery Channel, E!, FOX, FOX Sports, FX, History Channel, MTV, National Geographic, NBC, NHL, Nickelodian, PBS, Scifi Channel, Sony, Speed, Spike, TNT, TV Land, USA Network, VH1 Note that a downloaded video was not tested