For years, courts have struggled with the growth of online commerce. Among the most perplexing problems are issues of personal jurisdiction. In particular, courts are often called on to answer the question of “where” an activity takes place when it occurs over the internet — a question that, from a technological standpoint, has no answer. In fact, the fundamental structure of the internet confounds that question. The internet is a “distributed” network — that is, all of its major functions take place across multiple computers in widely diverse geographic locations.
Intellectual property cases, particularly those involving the unauthorized distribution of electronic information over the internet, add an extra level of complexity to the analysis. This is partly because the “property” at issue has no physical embodiment and so has no single location. For example, one of the most popular current methods for sharing large files (lawful and unlawful) is a protocol know as “bitTorrent.” The bitTorrent model is entirely distributed: The file being shared resides on many different computers and the computer downloading the file takes pieces of it from several computers at the same time, eventually stitching them together into the complete file. Once the computer has downloaded the file, it too becomes a host and the network of sharing computers grows. The advantage of this system is that no one host computer is overly taxed by requests for the entire large file. The disadvantage, from a legal standpoint, is that it becomes very difficult to track the origin of the file or determine a single “location” in which the file resides for jurisdictional or other purposes. As a result, enforcement efforts aimed at curbing copyright infringement via bitTorrent have focused on internet service providers and downloaders, rather than those who originate the files.
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