Artificial intelligence behemoth OpenAI is currently defending a lawsuit in India, brought by that country’s domestic news agency ANI. The primary allegation is that OpenAI improperly used ANI’s copyrighted material to train its generative AI programs.
Open AI has raised a number of defenses, including that the courts of India have no personal jurisdiction over it. As every first-year law student learns, courts must have personal jurisdiction over a defendant before they can issue any binding order. For centuries, personal jurisdiction required that the defendant be physically present where the court was located. However, as 20th-century advances in transportation and communciation made it easier for people to cross state and national boundaries, courts adjusted the doctrine. It is now widely recognized that someone who enters a state or foreign country (even virtually) and causes mischief can be subject to that state or country’s jurisdiction, even if the defendant is not physically located there.
But there are still limits. The United States Supreme Court has insisted that a defendant must “purposefully avail” itself of the state where the lawsuit is filed, meaning that it must engage with the state in some intentional and deliberate way. An accidental or unforeseen connection to the forum will not do.
And thus human interaction through the internet–so wide-ranging and ubiquitous in modern life–poses a problem. An e-commerce giant like Amazon or eBay might be said to purposefully avail itself of a forum by offering goods for sale in that forum through the internet. The interaction is knowing, willful, and intentional, and the case for jurisdiction is easy. But what about a third-party seller who puts a product on eBay without thinking about a particular market or location? Is that purposeful availment? Or what if someone posts allegedly infringing or defamatory material on social media or a blog? Is that person subject to personal jurisdiction anywhere the site can be accessed?
The U.S. Supreme Court has never answered that question, at least not directly. It seems to want to answer the question, if the Justices’ questions during oral argument for other personal jurisdiction cases are any indication. But the Court seems unable to articulate a coherent and workable set of jurisdictional rules for the internet, and instead keeps deferring the issue. (Meanwhile, lower courts in the United States are doing the best they can to articulate meaningful principles of internet jurisdiction, with a common approach being to allow the exercise of jurisdiction when the defendant “directed electronic activity into a forum” with the “manifest intent of engaging with persons in that forum.” That captures the Amazons of the world who know where they are selling and shipping products, but probably not the ordinary Instagrammer who just posts something online.)
But the Supreme Court may not be able to wait much longer. The outcome of the OpenAI case in India may force its hand, or at least put greater pressure on it to reach a resolution applicable to American courts.
Let’s return to the case in India. OpenAI has argued that India’s court system cannot exercise personal jurisdiction over it because it does not maintain any physical presence (like servers or data centers) in that country. OpenAI further relies on a 2009 court ruling concluding that the mere presence of an accessible app or website is not enough for India’s courts to exercise jurisdiction over a foreign defendant. But ANI points to a more recent decision from a Delhi court, holding that the Dubai-based company Telegram was subject to jurisdiction in India, and that “the conventional concepts of territoriality no longer exist … [Telegram choosing] not to locate its servers in India cannot divest the Indian courts from dealing with copyright disputes.”
If “conventional concepts of territoriality no longer exist” in other countries, at least with respect to internet-based contacts, the United States might find itself at a strategic disadvantage internationally. American companies could be haled into foreign courts more easily, with potentially disruptive consequences. Policymakers in other branches of the U.S. government, already concerned about the impact of Chinese-owned TikTok and Deep Seek, might contemplate economic or legal sanctions to level the playing field.
Notwithstanding its desire to wait for the right case to serve as a vehicle for formulating a test for internet jurisdiction, the Supreme Court might find itself having to act sooner rather than later. Clarity on internet-based jurisdiction will soon become absolutely necessary. The Court may tweak the existing regime by adopting a variation of the test used by lower courts. Or, given recent signals from several Justices that the entire test for personal jurisdiction needs revisiting, the Court may scrap the framework that has been in place for eighty years and start over. Either way, I do not expect the current muddle to last much longer.
The Interdependent Third Branch 