I asked Joshua Topolsky, the Verge’s editor, whether he had a hard time convincing the advertising sales department at the magazine to ditch pages. He said he didn’t: “From the beginning, there's been a company-wide belief that we can marry great advertising with great content and not have to cheat or trick our users,” Topolsky emailed. “And so far, that's proven 100 percent correct. Our traffic has been on a big climb, and I believe advertisers are really beginning to see the true value in engaged users who care (and return) versus sheer volume of pageviews (though our pageviews have also been through the roof).”

Jonah Peretti, BuzzFeed’s founder, echoed this sentiment. BuzzFeed publishes dozens of photo galleries daily, and lately it’s been getting into longform reporting, too. (See Doree Shafrir’s 7,000-word piece on nightmares.) If it paginated, it could boost its pageviews significantly. But it has never paginated, and Peretti suspects the site never will. (Even BuzzFeed’s homepage isn’t paginated—it keeps loading older stories as you scroll.) BuzzFeed can afford to run stories in full because its advertising model—which relies more on “branded content” and not banner ads—doesn’t rely on pageviews. For Peretti, the most important metric for a story is how many unique people click on it, and how widely it’s shared. He says: “If you build things that people are excited about sharing with their friends—if you build things that don’t annoy people and if it’s presented in a user-friendly way—then, long-term, people will share content more, new people will come and check out what you’re doing, people will have more positive feelings about you, and … OK, maybe it’s a little bit utopian of a view, but it’s working for us.”

“Pages that run too long can irritate readers,” Plotz said in an email. “We run stories of 2,000, 4,000, even 6,000 words, and to run that much text down a single page can daunt and depress a reader. So pagination can make pages seem more welcoming, more chewable.” An editor at another site made a further point that pagination can be a useful signal to readers about the length of an article—if you see an article with 10 pages, you know to set aside a lot of time to read it (or skip it).

“Cracking down on piracy of copyrighted works – including popular apps – is a top priority of the Criminal Division,” said Assistant Attorney General Breuer. “Software apps have become an increasingly essential part of our nation’s economy and creative culture, and the Criminal Division is committed to working with our law enforcement partners to protect the creators of these apps and other forms of intellectual property from those who seek to steal it.”

“Criminal copyright laws apply to apps for cell phones and tablets, just as they do to other software, music and writings. These laws protect and encourage the hard work and ingenuity of software developers entering this growing and important part of our economy. We will continue to seize and shut down websites that market pirated apps, and to pursue those responsible for criminal charges if appropriate,” said U.S. Attorney Yates.

“The theft of intellectual property, particularly within the cyber arena, is a growing problem and one that cannot be ignored by the U.S government’s law enforcement community. These thefts cost companies millions of dollars and can even inhibit the development and implementation of new ideas and applications. The FBI, in working with its various corporate and government partners, is not only committed to combating such thefts but is well poised to coordinate with the many jurisdictions that are impacted by such activities,” said FBI Special Agent in Charge Lamkin.

To rectify this ridiculous situation, the British MP Fiona O'Donnell has proposed some simple amendments to UK copyright law, as this post on Out-Law.com explains:

The act of downloading data required to view that copyright material "and any subsequent processing of that data, including processing for display, provided that it does not result in any publication elsewhere of the work or an adaptation of the work" should also be explicitly permissible, O'Donnell's draft amendment had proposed.

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• 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

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.

True Religion, a company which manufactures jeans, brought a similar enforcement action against foreign "rogue" websites in the Southern District of New York. It first obtained a temporary restraining order, which the court converted into a preliminary injunction. The relief obtained by True Religion is similarly broad as, and presents the same due process concerns raised by, the Chanel case.

True Religion filed a lawsuit in the Southern District of New York. As in the Chanel case, it went after numerous domain names in a single lawsuit, and it presented declarations from its investigators that they bought counterfeit goods from those domain names. True Religion also presented evidence that defendants undertook efforts to conceal their true identities (primarily by supplying 'purposely-deceptive contact information' to registrars), and that if defendants were provided notice, they would "likely destroy, move, hide or otherwise make [the domain names, products in question, accounts, and records] inaccessible to the Court." True Religion filed its lawsuit on November 15, and the court issued an ex parte TRO three days later. The TRO broadly enjoined the conducts of defendants and third parties, authorized service via email, and set a hearing for November 30, 2011. Defendants were required to show cause on or before the hearing date as to why the court should not issue a preliminary injunction. True Religion filed two sealed declarations and an unsealed declaration. No defendant appeared or filed any pleadings. On December 2, 2011, the court issued the preliminary injunction.

The TRO:

The TRO finds that True Religion established a likelihood of succeeding on the merits of its claims that defendants sold products which infringed on True Religion's trademarks and copyrights and that defendants' conduct will cause irreparable injury to True Religion. The TRO also finds that defendants undertook efforts to conceal their identity and that if "True Religion were to proceed on notice to defendants," defendants would shift their operations. Pending the court's ruling on True Religion's request for an injunction, the court issues the TRO, which contains the following provisions:

- defendants and any third parties acting in concert with them, including ISPs, registrars or third party selling platforms are restrained from selling allegedly infringing items;
- True Religion is entitled to broad financial discovery and discovery from various service providers (MasterCard, Visa, PayPal, back-end service providers, web designers, third-party selling platforms, registrars, registries, ad-word providers, etc.);
- third party payment processors and financial institutions are ordered to freeze any of defendants' funds;
- domain name registries (VeriSign, Neustar, Public Interest Registry) and registrars are orderd to "temporarily disable" the domain names referenced in the TRO, "through a registry hold or otherwise";
- third party service providers are ordered to cease providing service to defendants.

The Preliminary Injunction:

The order largely tracks the TRO, but adds a approximately 24 new domain names. As with the TRO, the preliminary injunction broadly enjoins defendants from exploiting True Religion's copyrights and trademarks. In addition, it contains the following provisions:

- third party service providers who are provided notice are enjoined from providing services to defendants in conjunction with any of the acts which defendants are enjoined from doing;
- a broad asset freeze, directed at banks, payment processors, PayPal and other payment services providers;
- continuing right to conduct discovery for True Religion;
- domain name registries and registrars are directed to continue disabling and lock the domain names, including the new domain names;
- third party service providers, including ISPs, back-end service providers, affiliate program providers, web designers, sponsored search engine or ad-word providers are ordered to "disable service" to the defendant websites; and
- an authorization to serve process via "registered electronic mail" pursuant to rule 4.

__

This is a slightly different flavor from the Chanel orders, but it raises similar due process concerns. The initial order (the TRO) is issued on an ex parte basis without notice, and it contains extraordinary relief -- it's essentially a kill switch for the websites in question. There are a variety of reasons why this has the potential to run roughshod over the rights of defendants or third parties; among other things, there could be some mistake as to the underlying domain name or website. There's no assurance that the site as a whole (as opposed to one or two products) is infringing. Also, after bona fide adversarial proceedings, True Religion's copyrights or trademarks may not turn out to be as enforceable as they seem at first blush. But on the strength of True Religion's unchallenged assertions, the court orders various third parties, including registrars, registries, payment processors, ad-word providers and others, to cut off the defendants. (The court did require True Religion to post a bond of $10,000--a laughably nominal amount.)

Regardless of whether the court has the authority to issue an injunction binding third parties who are not before the court, and who may not even be subject to the court's jurisdiction, many service providers will just follow the court order anyway. They may have no interest in expending resources to fight for a third party's due process rights. Indeed, in its declaration filed after the TRO was issued, True Religion indicated that the registries (VeriSign, Affilias, Public Interest Registry, Nominet UK) disabled many of the domain names in question upon receiving notice of the court order. PayPal also froze the funds in 84 different PayPal accounts.

It's unclear how much business defendants conducted in the United States. If their business activities in the US were nominal, this looks like an extraterritorial enforcement by a US rightsowner in a US court. It's tough to tell, given that the process hasn't been adversarial or even designed to facilitate bona fide participation by the defendants.

I know there are some tweaks in pending SOPA/PIPA legislation that surely would be even more helpful to plaintiffs, but courts today seem willing to grant broad remedies to rightsholders without any legislative change at all. It seems that today, rightsowners are able to go to court and, quickly and at low cost, take down domain names and get an order directing third parties, including service providers, ad networks, and payment processors, not to provide services to various websites. That's a pretty good deal if you are a rightsholder. They may even prefer that to the ITC proceedings proposed in OPEN.

_______

Additional comments from Eric Goldman

This case raises so many unanswered questions for me:

1) Just how many rightsowner vs foreign rogue website lawsuits are already in the court system? Are the Chanel and True Religion cases unique, or are dozens or hundreds of similar cases percolating through the system?

2) Did so much of this case really need to be done under the cloak of secrecy, and even if the answer is yes, why is so much of the case history still sealed?

3) Just how far can rightsowners go in suing dozens or hundreds of unrelated defendants in a single lawsuit? We've seen some pushback against copyright trolls. Are trademark owners similarly overreaching?

4) Just how far can rightsowners go in forcing third party service providers, like domain name registrars, ad networks, payment service providers and others, to honor rulings where the service providers aren't litigants? We dealt with this issue a bit in the 47 USC 230 context in the Blockowicz case. In that case, the Seventh Circuit set some important limits on the reach of Rule 65. Without an adversarial process, were the Chanel and True Religion courts perhaps a little lax in their reading of Rule 65?

5) If rightsowners can already get in court so much of the remedies that SOPA would provide, then why are they pushing so hard for SOPA?

6) Then again, if rightsowners can already get SOPA-like remedies in court, why are we fighting so hard against SOPA? This reminds me a little of the public outcry against UCITA a decade ago--much of the angst was about the parts where UCITA merely restated then-current contract law. Similarly, perhaps SOPA is more of a mirror on present reality than a bona fide change in the law. At minimum, it suggests SOPA may be distracting us from other real problems. If we object to the remedies in SOPA, not only do we need to kill SOPA, but we need to proactively seek new statutes that prevent the outcomes Chanel and True Religion are getting in court.

I plan to continue my personal efforts against SOPA, but it's clear that killing SOPA isn't enough to end the fight. Perhaps OPEN would help by giving rightsowners an easier path to attacking illegitimate foreign websites and thereby alleviate the pressure that rightsowners are putting on doctrines not specifically designed to deal with that problem. That would be a good reason to support OPEN, but it's now 100% clear to me that OPEN also needs more immunities, safe harbors and other limitations on rightsowner powers. If rightsowners get a shiny new enforcement toy via OPEN, they should have to give up some of their overreaching elsewhere.

• 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;

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.

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.

Plaintiff is informed and believes that Advance owns, operates, advertises, controls, sells, and otherwise provides hardware, software and websites for "news and press release services" including via the reddit.com website ("the Advance system", available at www.reddit.com). Upon information and belief, Advance has infringed and continues to infringe one or more claims of the '535 patent by making, using, providing, offering to sell, and selling (directly or through intermediaries), in this district and elsewhere in the United States, systems and methods for entering and providing structured news and press releases. More particularly, Plaintiff is informed and believes that Advance has and/or require and/or directs users to access and/or interact with a system that receives and stores separately specified portions of a new or press release and that assembles a news or press release in a predetermined format.

"Thank you for bringing this to our attention. We are not associated with the US Copyright Group and they are not authorized to use Copyright Enforcement Group materials."

Gordon Brown's WebCreator website is not befitting of a former Prime Minister. Tangent should be ashamed.

I respectfully suggest you delete that tweet, issue no more similar ones and generally try to sell your products in a more professional way. I really don't like the prospect of either a public slanting match or legal action, but if I need to protect my company's business and reputation, I will.

The word on the web is now that Tangent, previously unheard of by most, is an aggressively litigious PLC which employs threats of legal action in attempts to suppress the free expression of opinion. This is the result of the utter folly in believing that spurious controls can be put on the sheer democracy of social media.

Instant, online justice is now served on those heavy handed and mindless enough to attempt to suppress freedom of speech through impotent legal threats.

"Well your website is like you, it's your intellectual property," Angle said. "So they can't use something that's yours, intellectual property, unless they pay you for it or get your permission... And he didn't ask me for it, and he didn't pay me for it. I would have sold it to him."

Angle was asked: "So the latest is that it is up again, and you are just going to have to see as far as pursing this in court? Is that the plan?"

"Well we are going to pursue it," Angle replied. "I don't think that Harry is above the law. He needs to obey the law if you and I need to obey the law. Harry isn't immune. He needs to obey the law as well."