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
    Jay (profile), 6 Dec 2011 @ 10:37pm


    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.

    IANAL. Judging from your comments, you seem to be someone that at least follows PACER in a professional manner. But I've just noted the inaccuracies in my past posts as well as the affidavits when the domain seizures come up. You might have the advantage on knowledge, because I don't look at PACER in that regard.

    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?

    For the domain seizures specifically, none of the domains had a chance to be heard specifically. The DoJ was stalling in regards to information, with the Rojadirecta case forcing them to take a stance (as I explain in a link above).

    Where is ICE attempting to put people in jail?

    Ninjavideo (4 out of 5 so far), Bryan McCarthy, and Mohamed Ali (19) for streaming content.

    What are the rules that you claim the DOJ is not following?

    The Asset Forfeiture Procedures are the main ones being stretched. In a nutshell, ICE is treating copyright infringement as a drug trafficking crime.

    And what does any of this have to do with seizing domain names?

    This has to do with the rules that ICE "follows" in taking on criminal copyright infringement cases. However, copyright infringement is supposed to be a civil offense, not a criminal and their arguments for criminal copyright infringement have yet to make any sense on closer inspection.

    Really? Show me.

    The best place is Media piracy in Emerging Economies, which effectively details the problem of trying to stop copying as a fruitless endeavor in Russia, Brazil, Bolivia (which has no copyright law), the US, and India among a few other nations.

    There are a number of studies in movies, music, and games benefit from file sharing. Even publishers profit from filesharing. Further, if you want to go into government studies, I can do that, where more and more studies have found a positive to filesharing, not a negative.

    Show me how these warrants are not following constitutional or ethical guidelines.

    The best example is Karl's post here and here.

    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.

    In the domain seizures, it's not hard to figure out who can go to the ICE and order a domain seized without a hearing. The NFL, MPAA, and the UFC are the most aggressive in taking down domains through this process at the current time. The ICE has also come out and admitted they are the police force of Disney (who had the Ninjavideo site seized from the outset) who held the press conference after the initial raid on July 29th of last year. And with the recent domain seizures, it's not hard to pin those sites on the MPAA since a few were places such as 007disk.net.

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

    Odd, I thought you were following the domain seizures as they occurred...

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