jurisdiction through the use of modern technology.

Other courts have reached contrary results and have held that the mere use of an out-of-state Web page and server and consequent "advertising" in the forum state via the Internet is insufficient to confer jurisdiction. See for example, Webber vs. Jolly Hotels, 1997 WL 574950 (D.N.J. 1997), and Bensusan vs. King, 937 F.Supp. 295 (SDNY 1995) aff'd 126 F.3d 25 (2d Cir. 1997).

The Bensusan court held that the Blue Note Night Club in New York could not obtain jurisdiction in New York over a Missouri night club of the same name that advertised on the

Internet.

And, in a year-end jurisdiction case, the Ninth U.S. Circuit Court of Appeals held that a Florida company, known as Cybersell, was not subject to personal jurisdiction in Arizona for allegedly infringing, via the Internet, the trademark of an Arizona company with the same name.

"Cybersell Florida," the appeals court said, "did nothing to encourage people in Arizona to access its site, and there is no evidence that any part of its business (let alone a continuous part of its business) was sought or achieved in Arizona," Cybersell vs. Cybersell, 96-17087 (9th Cir. Dec. 2, 1997). As these cases show, jurisdiction and choice of law questions will continue to be a challenge in the years to come. Whether Web site solicitations and even e-mail solicitations will meet the minimum contacts required for the exercise of personal jurisdiction may well lead the U.S. Supreme Court to review its International Shoe criteria in a far different technological setting. Because the Internet is in some ways removed from geographical connections, Internet commerce offers the possibility of falling under the jurisdiction of any state or country with an Internet connection. If Internet commerce is to progress, it will be necessary for courts to establish a principled test of when an Internet user is subject to jurisdiction. 1998 will likely produce some efforts to establish such an Internet- specific test.

VICARIOUS AND CONTRIBUTORY LIABILITY

The liability of Internet service providers for the acts and actions of users of its services continued to be a significant issue in the past year. Contributory liability issues arose in various settings.

For example, a Florida circuit court, relying on the "safe harbor" provisions of the Federal Communication Decency Act, held that America Online was not vicariously liable for the violation of pornography laws by others over AOL. The civil action, which sought $8 million in damages, was filed on behalf of a boy who was sexually assaulted by someone he met through a chat room.

Similar vicarious liability actions have been filed involving defamation, trademark infringement and other tortuous and intellectual property infringement theories. The safe harbor provision of the Communications Decency Act -- one of the remaining provisions after the U.S. Supreme Court ruled part of the act unconstitutional -- is limited in its protective scope, however, and does not address liability for other types of harms occurring online, such as copyright infringement.

Even so, new federal legislation may resolve some of these issues. For example, the Online Copyright Liability Limitations Act, pending in the House of Representatives, would protect service providers from infringement claims based on the mere transmission of copyright-infringing material that others place on the Internet. Judicial and legislative activity will continue on this front in the coming year.

Service providers and Web site operators also have been sued and held liable for direct and intentional involvement in a variety of activities. These cases are to be distinguished from those involving vicarious liability alleged to arise by reason of merely providing the facility for the Internet use. The decisions, however, have arguably produced some inconsistent holdings due to questionable understandings of the underlying technology.