Why Adversarial Hearings Are Important: Rulings Change When The Other Side Is Heard

from the let-them-be-heard dept

We already wrote about the judge's ruling saying that Chitika was not liable for running ads on a site that linked to some allegedly infringing material, but there was a separate point brought out by the case -- and by Eric Goldman's analysis, that I wanted to highlight. As we noted, in that case, a court said that Chitika shouldn't be liable, because it was unaware of the infringement. But, the thing is, this is the second ruling in this case. The original ruling, back in January was different. It ordered the ad networks Chitika and Clicksor to freeze all money for the site and stop serving ads. But all of that was done without Chitika's participation in the case. In other words, no adversarial hearing.

Once Chitika got involved, the ruling flipped almost entirely. Or, as Goldman summarizes:
But hold on a second. The court's January order was based on ex parte proceedings. Chitika subsequently showed up to contest the case, and surprise! The court reaches a different result after adversarial proceedings. Let's hear it for due process!!! YEAH!
We hear all the time from defenders of ICE domain seizures and SOPA/PIPA that there is due process "because there's a judge involved." But that's not due process. If one of the key parties impacted by the lawsuit is not heard from it's not due process at all. True due process means you hear from those actually impacted. And, as we see in this case, it can make a pretty big difference.

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  1. icon
    G Thompson (profile), 6 Dec 2011 @ 8:07pm

    Re: Re: Re: Justice Delayed = Justice Denied

    It seems you are confusing Criminal 'illegal' acts with Civil 'unlawful' acts.

    People forget that something is ONLY unlawful after a court using full due process (procedural fairness/natural justice) states that it is. An ex parte decision (or in rem ) that removes real property has absolutely no due process and is solely based on court procedural rules (bench books etc) and realistically any property should be held in custody by the actual court itself and NOT by the plaintiff otherwise such things as Detinue, Replevin, and/or Trover should be actionable against the original plaintiff, and in the case of a Govt entity doing it 'eminent domain' defences and compensation should be available as well (especially if the Govt entity uses the property for its own purposes afterwards).

    But hey, if the USgovt or it's Corporate overlords want to keep up with the unethical and potentially unlawful conduct as I say in previous comments about SOPA etc, the rest of the world will just say "thanks but no thanks" to investing within the US economy. Bad for you US citizens, good for the rest of the +90% of the human population.

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