Of all the basic factual and legal questions that arise in litigation relating to the Internet, perhaps the thorniest is “Where?” Ordinary concepts of physical location may be very difficult to apply to Internet cases because the conduct at issuebe it a network intrusion, an illegal download, a misleading product website or a defamatory social medial postmay take place entirely in the digital realm. Although this kind of “digital malfeasance” can and does cause harm in the physical world, that harm may be very far removed from the physical location of the parties, their computers and their expected spheres of influence.
To make things even more complex, in intellectual property cases the assets themselves often have no relevant physical embodiment. A copied media file, misappropriated trade secret or misused trademark cannot usefully be said to be “found” in any particular place. But, even in the absence of any tangible act or object, physical location remains a central concept in many traditional legal analyses such as choice of law and jurisdiction. Courts facing these issues have come up with a variety of different, sometimes conflicting solutions.
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