Sliding Rule Theory Plaintiff Zippo Manufacturing Co.

is a Pennsylvania corporation which makes, among other things, the well-known "Zippo" tobacco lighters, and the holder of a trademark on the name ZIPPO. Defendant Zippo Dot Com, Inc. is a California corporation which operates a web site and Internet news service, and the holder of the rights to the domain names ZIPPO.COM, ZIPPO.NET, and ZIPPONEWS.COM. Plaintiff alleges that by using the trademarked name Zippo in numerous locations on its web site and news group messages, Defendant has violated the Federal Trademark Act and various state intellectual property laws. Defendant moves to dismiss for lack of proper jurisdiction. The court first described the nature of Defendant's Internet business: "Dot Com's Web site contains information about the company, advertisements and an application for its Internet news service. The news service itself consists of three levels of membership--public/free, "Original" and "Super." Each successive level offers access to a greater number of Internet newsgroups. A customer who wants to subscribe to either the "Original" or "Super" level of service, fills out an on-line application that asks for a variety of information including the person's name and address. Payment is made by credit card over the Internet or the telephone. The application is then processed and the subscriber is assigned a password which permits the subscriber to view and/or download Internet newsgroup messages that are stored on the Defendant's server in California." Also relevant to the jurisdiction issue are the Defendant's contact with the state of Pennsylvania: "Dot Com's contacts with Pennsylvania have occurred almost exclusively over the Internet. Dot Com's offices, employees and Internet servers are located in California. Dot Com maintains no offices, employees or agents in Pennsylvania. Dot Com's advertising for its service to Pennsylvania residents involves posting information about its service on its Web page, which is accessible to Pennsylvania residents via the Internet. Defendant has approximately 140,000 paying subscribers worldwide. Approximately two percent (3,000) of those subscribers are Pennsylvania residents. These subscribers have contracted to receive Dot Com's service by visiting its Web site and filling out the application. Additionally, Dot Com has entered into agreements with seven Internet access providers in Pennsylvania to permit their subscribers to access Dot Com's news service. Two of these providers are located in the Western District of Pennsylvania." After analyzing the traditional doctrine of personal jurisdiction relating both to the state long arm statute and the US Constitution, the court charted the precedents regarding the Internet and personal jurisdiction: "In recent years, businesses have begun to use the Internet to provide information and products to consumers and other businesses." Id. The Internet makes it possible to conduct business throughout the world entirely from a desktop. With this global revolution looming on the horizon, the development of the law concerning the permissible scope of personal jurisdiction based on Internet use is in its infant stages. The cases are scant. Nevertheless, our review of the available cases and materials reveals 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. This sliding scale is consistent with well developed personal jurisdiction principles. 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. 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 personal jurisdiction. The middle ground is occupied by interactive Web sites 1

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. Applying the developing sliding scale doctrine to the facts of the case, the court held that its assertion of personal jurisdiction over the Defendant was appropriate. The court rejected Defendant's attempt to analogize its acts as analogous to the passive web site cases described above, placing it at the other extreme, the "doing business over the Internet" class. Cyber Crimes: A General definition of cyber-crime may be unlawful act wherein the consumer is used, either as a tool or a target or both. Any criminal activity that uses a computer either as an instrumentality, target or a means for perpetuating further crimes comes within the ambit of cyber-crimes. The Internet is fast changing the lifestyle of every individuals whether be it students, businessmen, doctors, lawyers, engineers, etc. it is becoming a way of life for millions of people. With this, the criminals are also not lagging behind. Their area of operation has also widened with such technological progress. Difference between Cyber Crime and Conventional Crime 1. Cyber Crimes always involve use of computers and technology. 2. Cyber Crimes can be committed in the jurisdiction without the criminal being physically present in it, i.e. it knows no geographical limitations, boundaries or distances. 3. Cyber Crimes is not always clearly illegal as compared to conventional crimes. This is because of lack of law punishing them. 4. It requires only small resources as compared to the resultant damage caused by the commission of the crime.

Types of Cyber Crimes 1. Hacking: - Hacking means unauthorized access to a computer system. As defined in Section 66 of the Information Technology Act, 2000, hacking is whoever with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by means commits hacking 2. Virus, Trojans and Worms: - A Computer virus is a program designed to affect the health of the computer. They destroy or hamper the computer systems. Trojan is defined as a maliciously, security breaking program that is disguised as something benign such as a directory list, archive, game, or a program to find and destroy viruses.

3. Cyber Pornography: - Cyber pornography is pornographys which is distributed via the internet, primarily websites, peer-to peer file sharing or Usenet newsgroups. This is a crime that is clearly illegal, both on and off the internet 4. Cyber Stalking: - Cyber Stalking is defined as the repeated acts of harassment or threatening behaviour of the cybercriminal towards the victims by using internet services. 5. Cyber Terrorism: - Cyber terrorism may be defined to be the premeditated use of disruptive activities, or the threat thereof, in cyber space, with the intention to further social, ideological, religious, political or similar objectives, or to intimate any person in furtherance of such objectives 6. Cyber Crimes related to Finance: - Crimes over internet for earning financial or monetary gain thorough illegal means. It may occur in many forms, but the most recognized technique is online fraud and spoofing. This would include cheating, credit card frauds, money laundering, etc. 7. with mobile and Wireless Technology: - due to the development in mobile and wireless technology, much work can be carried out on mobiles phones, which was earlier possible only on computers. Emergence of mobile money, telephone banking, etc. has raised the threat of crimes committed through this medium. 8. Data Diddling: - This kind of an attack involves altering the raw data just before a computer processes it and then changing it back after the processing is completed. 9. Internet time thefts: - This connotes the usage by an unauthorized person of the internet hours paid for by another person. This type of crime was unheard until the victim reported it. 10. Logic bombs: - this is an event dependent program. This implies that this program is created to do something only when a certain event occurs. Statuary Provisions (Information Technology Act, 2000) The first step in the field of cyber law was the Model Law which was drafted under the United Nations Commissions on International Trade law, 1986. Then, the United Nations general assembly on 30th January, 1999 passed a resolution to regulate e-commerce through uniform set of laws applicable to its members countries. Being a signatory to the resolution, Parliament of India has a passed the Information Technology Act, 2000 on 17th may, 2000. The preamble of the Act states that the objectives of the act is to legalise e-commerce and further amend the Indian penal Code, 1860, the India Evidence Act,182, the Bankers Book Evidence Act, 1891a nd the Reserve Bank of India Act, 1934 to make compatible with this Act. The Act consists of 13 Chapters and governs laws relating to Electronic Contract, Electronic Record, Digital Signature and the use of the electronic records and signature in Government records. It also regulates the activities of the Network Service Providers, Internet Service Providers (ISPs).

Punishments and Offences The main aim of the act is to legalize the digital language so that people can easily and without fear use the electronic devices for their own purposes like doing business or for entertainment. It prescribes certain offences and penalties to keep a check on the cyber crime, the main of them are: Section 65: Tampering with Computer Source Documents Section 66: Hacking with Computer System Section 67: Publishing of obscene information which is obscene in electronic form. Section 70: breach of confidentially and privacy. Liability of Internet Service Providers: Internet service Providers acts a link for the activities that takes place on the internet. He runs the risk of being liable for information that is transmitted over the information system provide by his services. S.79 of I.T. Act, 2000 provides the network service providers is not subject to any civil or criminal liability under this act for any third party information or data made available by him, if, he proves that the offence was committed without his knowledge., or that he had exercised all due diligence to prevent the commissioning of such offence. NSPs will be held liable for their consent or third party consent that they adopt or approve of. With transactions occurring over an open network environment, questions are raised as to the liability of the carriers of their transactions, disputes and problems arise. In the physical world, intermediaries such as publishers for the content published by the authors. However, in the electronic there are some classes of intermediaries who carry the data and do not exercise the direct control over the content. For promoting the electronic transaction it is important to clarify the liability if such NSPs. It is proposed that intermediaries who are ISPs are not responsible for thirds party content for which they mere provide access to. It is necessary to insure that providers do not shirk their responsibilities under the licensing scheme to regulate the undesirable content. The provision therefore makes it clears that it will absolve ISPs from their licensing obligations. Avnish Bajaj vs. State of Delhi, (2005): Facts of the case: Avnish Bajaj (Appellants), CEO of Baazee.com, an online auction website, was arrested for distributing cyber pornography. The charges stemmed from the fact that someone had sold copies of a pornographic CD through the Baazee.com website. Issues raised by the Prosecution 1. The accused did not stop payment through banking channels after learning of the illegal nature of the transaction. 2. The item description "DPS Girl having fun" should have raised an alarm. Issues raised by the Defence: 1. Section 67 of the Information Technology Act relates to publication of obscene material. It does not relate to transmission of such material. 2. On coming to learn of the illegal character of the sale, remedial steps were taken within 38 hours, since the intervening period was a weekend.

Factors considered by the court were: 1. There was no prima facie evidence that Mr. Bajaj directly or indirectly published the pornography, 2. The actual obscene recording/clip could not be viewed on Baazee.com, 3. Mr. Bajaj was of Indian origin and had family ties in India. Findings of the court: 1. It has not been established from the evidence that any publication took place by the accused, directly or indirectly. 2. The actual obscene recording/clip could not be viewed on the portal of Baazee.com. 3. The sale consideration was not routed through the accused. 4. Prima facie Baazee.com had endeavoured to plug the loophole. 5. The accused had actively participated in the investigations. 6. The nature of the alleged offence is such that the evidence has already crystallized and may even be tamper proof. 7. Even though the accused is a foreign citizen, he is of Indian origin with family roots in India. 8. The evidence that has been collected indicates only that the obscene material may have been unwittingly offered for sale on the website 9. The evidence that has been collected indicates that the heinous nature of the alleged crime may be attributable to some other person. Decision of the court given on 21.12.2004 1. The court granted bail to Mr. Bajaj subject to furnishing two sureties of Rs. 1 lakh each. 2. The court ordered Mr. Bajaj to surrender his passport and not to leave India without the permission of the Court. 3. The court also ordered Mr. Bajaj to participate and assist in the investigation. The Delhi Police has recently registered Indias First Case of Cyberstalking. One Mrs. Ritu Kohli complained to the police against the person who was using her identity to chat over the Internet at the website www.mirc.com, mostly in the Delhi channel for four consecutive days. Mrs. Kohli further complained that the person was chatting on the Net, using her name and giving her address and was talking obscene language. The same person was also deliberately giving her telephone number to other chatters encouraging them to call Ritu Kohli at odd hours. Consequently, Mrs Kohli received almost 40 calls in three days mostly at odd hours from as far away as Kuwait, Cochin, Bombay and Ahmedabad. The said calls created havoc in the personal life and mental peace of Ritu Kohli who decided to report the matter. Consequently, the IP addresses were traced and the police investigated the entire matter and ultimately arrested Manish Kathuria on the said complaint. Manish apparently pleaded guilty and was arrested. A case was registered under section 509, of the Indian Penal Code (IPC). And thereafter he was released on bail. This is the first time when a case of cyberstalking has been reported. Cyberstalking does not have any one definition but it can be defined to mean threatening, unwarranted behaviour or advances directed by one net user to another user using the medium of Internet and other forms of online 5

communication. Cyberstalking is a recent phenomenon and women generally are the main targets of this cybercrime. League against Racism and Anti-Semitism (LICRA), French Union of Jewish Students, v Yahoo! Inc. (USA): (LICRA v. Yahoo!) is a French court case decided by the High Court of Paris in 2000. The case concerned the sale of memorabilia from the Nazi period by internet auction and the application of national laws to the internet. Some observers have claimed that the judgement creates a universal competence for French courts to decide internet cases. A related case before the United States courts concerning the enforcement of the French judgement reached the 9th US Circuit Court of Appeals, where a majority of the judges ruled to dismiss Yahoo!'s appeal. Criminal proceedings were also brought in the French courts against Yahoo!, Inc. and its then president Timothy Koogle; the defendants were acquitted on all charges, a verdict that was upheld on appeal. The defense rested on the fact that these auctions were conducted under the jurisdiction of the United States. It was claimed that there were no technical means to prevent French residents from participating in these auctions, at least without placing the company in financial difficulty and compromising the existence of the Internet. The defendants noted 1. that their servers were located on US territory, 2. that their services were primarily aimed at US residents, 3. that the First Amendment to the United States Constitution guarantees freedom of speech and expression, and that any attempt to enforce a judgement in the United States would fail for unconstitutionality. As such, they contended that the French court was incompetent to hear the case. Competence of the French court The court ruled that there were sufficient links with France to give it full jurisdiction to hear the complaint. In particular:

the auctions of Nazi memorabilia were open to bidders from any country, including France; the display of such objects, and the viewing of such objects in France, caused a public nuisance and was forbidden under French criminal law; Yahoo! Inc. was aware that French residents used its auction site, as it displayed French-language advertisements on its pages when they were accessed from computers in France.

This last point was also referred to in the injunction against Yahoo! Inc. The court specifically dismissed the claim that the alleged problems of enforcing a judgment were sufficient to nullify its competence. Sec 66 of IT Act 2000: Hacking with Computer System. (1) Whoever with the intent of cause or knowing that is likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means, commits hacking. 6

(2) Whoever commits hacking shall be punished with imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with both. Sec 66A of the IT act 2000 is in the forefront of the news after the recent arrest of two young girls at Palghar, Maharashtra. The girls had protested on their facebook profiles over the unofficial shutdown of Mumbai on the day Bal Thackeray, chief of Shiv Sena was to be cremated. Subsequent to the countrywide outrage over the arrests, a petition was filed in the Supreme Court by Shreya Singhal, an Indian-born student of Cambridge presently on vacation at home, terming Article 66A as unconstitutional since it violates freedom of speech as defined under Article 19 of the constitution & thus praying for the act to be repealed/amended. Earlier too, sec 66A has been misused by the police in West Bengal, Tamilnadu & Pondicherry at the behest of complaints filed by politicians & their discretionary interpretations by the police . Digital Signatures: U/s2(p) "digital signature" means authentication of any electronic record by a subscriber by means of an electronic method or procedure in accordance with the provisions of section 3; S/3. (1) Subject to the provisions of this section any subscriber may authenticate an electronic record by affixing his digital signature. (2) The authentication of the electronic record shall be effected by the use of asymmetric crypto system and hash function which envelop and transform the initial electronic record into another electronic record. A digital signature or digital signature scheme is a mathematical scheme for demonstrating the authenticity of a digital message or document. A valid digital signature gives a recipient reason to believe that the message was created by a known sender such that they cannot deny sending it (authentication and non-repudiation) and that the message was not altered in transit (integrity). Digital signatures are commonly used for software distribution, financial transactions, and in other cases where it is important to detect forgery or tampering. How It Works: Assume you were going to send the draft of a contract to your lawyer in another town. You want to give your lawyer the assurance that it was unchanged from what you sent and that it is really from you. 1. You copy-and-paste the contract (it's a short one!) into an e-mail note. 2. Using special software, you obtain a message hash (mathematical summary) of the contract. 3. You then use a private key that you have previously obtained from a public-private key authority to encrypt the hash. 4. The encrypted hash becomes your digital signature of the message. (Note that it will be different each time you send a message.) At the other end, your lawyer receives the message. 1. To make sure it's intact and from you, your lawyer makes a hash of the received message. 2. Your lawyer then uses your public key to decrypt the message hash or summary. 3. If the hashes match, the received message is valid.