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. identicon
    Willton, 6 Dec 2011 @ 9:24pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Justice Delayed = Justice Denied

    Then why have there been no hearings from the government for the ones happening a year and a half ago? If they're temporary, *surely* a year and a half of waiting to have an adversarial hearing is a little long in the tooth.

    I don't know. Why don't you tell me? You appear to have a better handle on the facts of these cases. Perhaps you can look up their statuses in PACER and find out. Better yet, tell us where the cases are and what their docket numbers are, and we can look for ourselves.

    So first you're admitting that the TRO is supposed to be temporary, but now, if they push the issue, they get their due process? Also, who's saying they'll lose if they don't even get a chance to be heard in the first place?

    As they say, you can't expect to get anything if you don't ask for it.

    And how do you know that these parties are not getting a chance to be heard? Just because a party did not participate in a hearing does not mean that it was not given the opportunity to do so. Where's your proof that these entities are not being given opportunities to be heard?

    By the warrants issued by the ICE, they were locked up to preserve evidence. Which makes no sense. The domains are given a new place to call home, and ICE has the task of trying to jail people for a civil offense. Isn't it the job of the DoJ to try to follow the rules instead of bending them?

    You're not making sense. Where is ICE attempting to put people in jail? What are the rules that you claim the DOJ is not following? Where can I find these rules? And what does any of this have to do with seizing domain names?

    You're defending the plaintiff's claims of economic losses and damages, when there are plenty of court cases and evidence proving otherwise.

    Really? Show me.

    If their claims don't pan out before a judicial hearing (that isn't one sided) why should those same plaintiffs have the ability to cause actual financial hardship to either a known competitor or someone relying on money from their payment processors? Your argument makes no sense because it hinges on the plaintiffs being saints, which has been proven countless times to be a false argument.

    How do you know that the plaintiffs are the same in each case? And what makes you think that the facts are the same in each case?

    I've read the warrants and also noted the problems that have arisen from the civil procedures and their vague statements. I question because they are bending rules to a legal grey area where their actions do not follow constitutional nor ethical guidelines. I may have a bias against governmental interference but that hardly means I have clouded judgement in what is right and wrong with either domain seizures or SOPA.

    What are the problems? Give me some examples, please. Show me how these warrants are not following constitutional or ethical guidelines. Prove your case.

    No. If you're the one supporting a plaintiff, then you should be able to do your own due diligence into why they're wrong with facts to back up your statements. I have already read the statements and noted the exceptions that copyright law is currently taking in the enforcement area. It does not represent what most people like. It doesn't represent innovation nor increased knowledge and learning. It represents a select number of people trying to profit by criminalizing behavior that most people actually think is nothing wrong.

    First of all, I haven't taken a position as to any particular plaintiff's claims are meritorious, particularly because I don't know who the friggin' plaintiffs are. The only case I have some awareness of is this one. It's pretty hard for me to defend a particular plaintiff when I don't know the identity of said plaintiff.

    Second, you clearly know more about these cases than I do, so perhaps you should give us an example that we can examine.

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