“Three things matter in real estate,” the old saying goes, “location, location, location.” That can be true in litigation as well. The venue in which a trial is held can often be dispositive of a case, for a host of reasons ranging from the applicable law, to the character of the jury pool, to the simple business economics of trying a case in an inconvenient forum.
But questions of jurisdiction and venue—questions of the “location” of an improper act, or a bad actor, or a particular harm, or a piece of intangible digital property—become extremely complex in a highly networked and widely distributed commercial environment. If unlawful conduct occurs on the Internet, the question of “where” it occurred has been a challenge for the courts in recent years. The legal regimes governing jurisdiction and venue are among the oldest in American law, and they are not always a perfect fit for changed circumstances. So the courts face difficult questions: How much Internet commerce is enough to invoke general personal jurisdiction, which typically requires a sustained business “presence?” Where does intangible information “exist” for purposes of a property claim, if it is stored in a distributed cloud computing infrastructure? Over time, the courts have developed a series of loose rules for these kinds of questions, but there are few bright lines.
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