Venkat Balasubramani and Eric Goldman (who are also posting occasionally on Techdirt these days) are doing an amazing job uncovering a series of lawsuits that suggest many courts are already issuing widespread and questionable injunctions against third party service providers when intellectual property holders come to them demanding vengeance. We've already covered the True Religion case and the Chanel case. It seems worth noting that both True Religion and Chanel have come out in favor of censoring the internet, having sent a letter cheering on both domain seizures by ICE and earlier versions of SOPA and PIPA. And it looks like they figured why wait for the law to change, when they could just convince courts to give them those remedies already.

The link above highlights yet another such case, this time involving Philip Morris. The pattern in all three cases is quite similar. Company claims website is offering infringing works and sues. Court -- without hearing from the site owners (and usually not making any effort to see if the sites are all owned by the same owner) -- issues massive injunctions against third party service providers to take down or otherwise block those sites. As Venkat summarizes, the Philip Morris restraining order includes:

• Defendants are enjoined from using any Philip Morris marks, in websites, domain name extensions, links to other websites, search engine databases.
• The domain name registrars are directed to transfer the domain name certificates to plaintiff (for deposit with the court).
• The registrars are directed to transfer the domain names to GoDaddy, who will "hold the registrations for the . . . domain names in trust . . . during the pendency of [the] action."
• GoDaddy shall also update the DNS data so it points to a copy of the complaint, summons, and court documents.
• Finally, Western Union is directed to "divert" transfers made by US consumers to three named individuals

All without hearing from the other side. Seem excessive? It sure does. Venkat notes how extraordinary these remedies are. Think about it for a second: based solely on the declaration of a Philip Morris employee, the court is ordering the full transfer not just of websites, but of any funds being sent to a website. That's insane and a clear violation of any reasonable due process.

At the same link, Eric Goldman notes that the sudden appearance of three of these cases suggests that there are probably many more in the system. And he points out that this information certainly seems like it should be relevant to those currently debating these bills in Congress. Do they even realize that the remedies they're describing are already being used by courts?

Separately, he notes the ridiculousness of such extreme punishment when only one side is heard:

From my perspective, the three cases demonstrate the problems with ex parte judicial oversight. Only hearing one side of the story isn't enough to trigger the kind of draconian remedies the courts are granting. In particular, in this case, interdicting money being sent via Western Union is quite troubling. Basically, the court says that money being sent by customers who may have done nothing wrong goes into a holding tank--the customers don't get their money back now (and maybe never?) even if the transaction didn't consummate. It seems like rejecting the money transfers, rather than interdicting the money, would have a lot fairer to the buyers caught in the middle. But they aren't in court to defend their interests, and no one else is speaking up on their behalf, so the rightsowner can make a pure cash grab from potentially innocent buyers. That kind of result wouldn't happen with real due process.

He wonders if there's a way to fix these kinds of abuses of process. In fact, I would suggest that the House Judiciary Committee (and the Senate) would be much better served dealing with the problem of such one-sided extreme court rulings, rather than encouraging more of that with SOPA and PIPA.

As a whole bunch of folks have sent in a District Court judge in Nevada issued some rather stunning orders lately concerning websites that luxury brands company Chanel has argued "advertise, promote, offer for sale or sell" possibly counterfeit Chanel goods. The order is basically a more expansive private version of SOPA, in which the judge has let Chanel directly "seize" about 600 domains, as well as issued restraining orders and injunctions, including orders to Google, Bing, Yahoo, Facebook, Google+, and Twitter to "de-index and/or remove [the domain names] from any search results pages." Venkat Balasubramani covers the other wide-reaching aspects as well:

• an injunction against the defendants prohibiting them from using any Chanel marks or selling any Chanel products;
• an injunction against the top-level domain name registry, directing it to change the registrar of record for the domain names to GoDaddy (!);
• an injunction telling GoDaddy to change the DNS data for the domain names so the domain names resolve to a site where a copy of the case documents are hosted (servingnotice.com/sdv/index.html);
• authorization for Chanel to enter the domain names into "Google's Webmaster Tools" and cancel any redirection of the domain names;

Venkat also points out how crazy this whole thing is:

First, I did not get a clear sense that this is an enforcement action against a single defendant. If there's no credible allegation of a conspiracy or an arrangement between whomever is behind these domain names, it strikes me as problematic for Chanel to file a placeholder lawsuit and then add or remove defendants at its convenience.

Second, it was not entirely clear why the lawsuit was in Nevada. The domain names are not registered to a registrar that is based in Nevada, and there's no clear basis for in rem jurisdiction. It's possible that plaintiff picked this jurisdiction as a matter of convenience, but there's no apparent relationship between the alleged counterfeiting activities and the State of Nevada.

Then there's the matter that some of the court's relief is directed at a variety of entities that are not parties to the dispute (including the registrars, the registry, Facebook, Twitter, Google, etc.). I'm not sure how this court can direct a registry to change a domain name's registrar of record or Google to de-list a site, but the court does so anyway. This is probably the most problematic aspect of the court's orders. [Interesting that GoDaddy was chosen as the registrar that the domain names would be transferred to.]

Finally, there's no clear basis to authorize a transfer of a defendant's property pending resolution of a lawsuit to the plaintiff. (See Bosh v. Zavala.) I don't see this as particularly problematic in this case because Chanel is not looking to liquidate the domain names, but it certainly raises due process red flags, given that this is all done with minimal (or no) notice to defendants.

There are all sorts of issues with these rulings that appear to go way, way beyond what the law allows (even if SOPA were passed). And the fact that this includes sites that might only "promote" possibly counterfeit Chanel products? It sounds like many of the sites are entirely clear that they're offering replicas, meaning no likelihood of confusion being at issue. Furthermore, some of the order appears to also bar even the "promoting" of legitimate Chanel products. How is that reasonable?

Beyond that, the broad disappearing of these websites, ordering search engines and social networks to totally block their existence, despite the lack of an adversarial hearing, or any allowance for those search engines or social networks to have a say, seems immensely troubling. Why even bother with SOPA at all, when judges feel they can just order broad censorship based on one side's claims? These rulings are quite worrisome. One really surprising bit is that the judge, Kent Dawson, was one of the judges who smacked down Righthaven, so he at least understands how companies can abuse IP rights. It's surprising that he'd issue such a broad reaching order like this.

Furthermore, as Ars Technica points out, the judge doesn't even bother to look at the jurisdictional questions, and seems to order the global disappearance of sites outside the US, without any clear mandate to do so:

Missing from the ruling is any discussion of the Internet's global nature; the judge shows no awareness that the domains in question might not even be registered in this country, for instance, and his ban on search engine and social media indexing apparently extends to the entire world. (And, when applied to US-based companies like Twitter, apparently compels them to censor the links globally rather than only when accessed by people in the US.) Indeed, a cursory search through the list of offending domains turns up poshmoda.ws, a site registered in Germany. The German registrar has not yet complied with the US court order, though most other domain names on the list are .com or .net names and have been seized.

Who knows if anyone will even step up to appeal such broadly rulings (probably not), but they set a very scary precedent.

The various luxury brand companies are pretty quick with trademark lawsuits these days -- often going well beyond reason. We've seen it time and time again -- especially when they sue third parties like Google or eBay. So I guess it shouldn't be too surprising that in their rush to sue, they don't always check all the facts... leading to hilarious scenarios like the one brought to our attention where Gucci accidentally sued Chanel and even got a temporary restraining order against the company.

The timeline, as far as I can tell, goes like this. Last year, Chanel and LVMH sued some websites that were selling counterfeit goods. One of those websites was called MyPurseWorld.com. In a ruling last June, a federal district court in Florida transferred that domain to Chanel, who began using the website to post the court ruling and to post info about other counterfeiting sites. Fair enough (well, I might argue that, but we'll leave it aside for now).

However, earlier this month, Gucci sued a bunch of sites for trademark infringement -- including MyPurseWorld.com. Apparently whoever put together the lawsuit hadn't checked out the site since last June, or discovered that Chanel now owned it and it was being used by that company to post anti-counterfeiting info. So, basically Gucci sued Chanel, claiming that its MyPurseWorld.com site was selling counterfeit Gucci products. They even had Chanel served as a defendant. On top of that, a district court in Manhattan granted a restraining order against "the website or its owner" barring web hosts or ISPs from working with them. Technically, yes, this could have meant that Chanel couldn't work with webhosts or ISPs. Of course, Chanel protested and Gucci quickly backed down, admitting "a minor bit of confusion."

I'm still a bit confused why the judge would totally bar a site from working with a webhost or ISP, but we'll leave that discussion for another day.