Does Congress Even Realize That The Courts Appear To Think That SOPA Is Already In Force?

from the does-that-change-the-debate dept

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.

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Companies: chanel, philip morris, true religion

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Comments on “Does Congress Even Realize That The Courts Appear To Think That SOPA Is Already In Force?”

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45 Comments
Richard (profile) says:

Eh - I'm confused

I’m just watching the BBC’s Dickens spoof “The bleak old shop of stuff”. In this story a lawyer (who refuses to even say who he is working for) turns up and confiscates the possessions (and family!) of the hero – on the basis of some obscure law or other. It’s all clearluy intended to be a ridiculous spoof right? … and then I read this post – and wonder…

DCX2 says:

Re: Retroactive cover

Normally “ex post facto” means you can’t punish someone for breaking current laws that didn’t exist in the past.

Perhaps it’s time “ex post facto” applied in reverse; attempts to legalize previously illegal actions should not render moot prosecution for committing what was used to be a crime when it was still illegal.

DogBreath says:

What's next?

I would suspect that these same judges treat Grand Jury Incitements as automatic convictions. Do not collect $200 dollars, go directly to jail.

“Not to worry,” says the judge, “you can still appeal your one-sided conviction from the safety of prison, which will also give you access to fine law library that is only available to prison inmates. You should be thanking us.”

DannyB (profile) says:

The Wild West days are over

Courts are now starting to take seriously their mandate to do what dinosaur industries want without waiting for congress to rubber stamp it with actual legislation such as SOPA and Protect IP.

The wild west days of waiting for congress to pass legislation are over. Courts will now preemptively enforce legislation before it is passed into law, or even introduced as a bill.

Anonymous Coward says:

All without hearing from the other side. Seem excessive? It sure does.

Inasmuch as these cases were subject to Rule 65, doubtlessly there was a good faith attempt to contact the defendant. Problem is, the defendants generally know they’re doing something illegal and don’t answer summons. So then what? Forget about it That’s not an answer and not the way our judicial system works in any capacity.

But the entire premise of your article is off base. This is all pursuant to litigation under existing law. SOPA applies only to foreign websites. What you are in essence arguing is that you want a higher standard for dealing with foreigners than currently exists under US law. That argument is destined to blow up in your face and is precisely the complaint of the pro-SOPA forces right now. Hard to believe you’ll get a lot of sympathy with this.

Anonymous Coward says:

Re: Re:

Define foreign website.

One based outside the US?
All websites can be based outside the US, all the big ones at least, they all have servers everywhere in the world, also they buy space in “foreign” servers is that enough to make them foreign?

Or is about the catering of Americans, must they be dedicated to Americans or any American accessing a foreign server is enough to satisfy that rule? Because in that case every major American website portal can be a target.

Also didn’t ICE just seized the domains of South Korean websites all of them in Korean?
Strangely enough the owner of the websites in question was apparently an American company.

gorehound (profile) says:

Re: Re:

I would not be wanting to allow SOPA/PIPA so quickly.If you are an American then you should realize it will only take a little nudge to do what they are contemplating right on US Soil (property).
Just look at what the Patriot Act does as that one was created for use against Terrorists.

And also I am one of the Citizens who does share my Art/Music with bands I formed freely and with permission of my old and current bandmates.I use TPB & Other P2P sites to do this.
I did nothing illegal so I will be hurt right off by these atrocious laws.
Techdirt has been really awesome in helping us all out to cover what is happening and I have put all the techdirt links on my personal/band Facebook to educate my friends,fans, and followers.
Keep up the great job Techdirt !!!

Another AC says:

Re: Re:

“Problem is, the defendants generally know they’re doing something illegal and don’t answer summons.”

Except that’s simply not true. For evidence, I offer as much as you do 🙂 You forgot about the whole innocent until proven guilty thing there…

The rest of your comment isn’t worth speaking to, you mention the same wrong facts as every other ‘pro-SOPA forces’ do, and thus make false conclusions.

Steve R. (profile) says:

Gingrich Will Save Us

Gingrich came out against activist judges. Unfortunately, I don’t think Gingrich would find SOPA unconstitutional.

“According to Gingrich, judges are not following the U.S. Constitution and were subverting elected officials.
Gingrich’s statement that he would use U.S. Marshals to arrest judges was in response to CBS’s Bob Schieffer’s suggested scenario in the case of Judge Fred Biery who was criticized for a ruling that opposed religious speech during a high school graduation ceremony. Judge Biery’s ruling was later overturned by a federal appeals court and Gingrich used it to illustrate how some American judges were disregarding “traditional American values.”

Read more: http://www.digitaljournal.com/article/316386#ixzz1h1JLYqUT

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