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
    out_of_the_blue, 6 Dec 2011 @ 8:35am

    "Due process" in civil matters can mean a letter was mailed.

    That's deemed sufficient notice. Should be a registered letter, but even that's not required.

    Don't conflate the full panoply of civil rights due "natural persons" with what an artificial entity gets by societal permission.

    And also a good point above: complainants can't be required to wait forever if a respondent chooses to not show up.

    In fact, this IS "due process". A complaint was made; the party was notified, appeared, and got it reversed. So you're just blatantly wrong trying to say that ex parte is NOT "due process", it's just the official beginning of it.

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