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 @ 8:48am

    Legalistic Mike is for EVERY possible delay and dodge.

    Opinions "Change When The Other Side Is Heard", too.

    How about, can we get just a SLIGHT ACKNOWLEDGEMENT from you that IF an advertiser knows that a site where its advertisement are is promoting piracy, then it has a moral obligation to pull its advertisements? That's been standard practice forever -- and morality isn't different now because "on the Internet".

    But Mike seeks only to DODGE ethical connections, to show only the poor pirates and their cohorts feeding off infringement.

    As I somewhat forgot above, that's why this 2nd piece so soon following on same case. EVERY time Mike finds opportunity to excuse and enable and extend and facilitate copyright infringement, he takes it. Not really arguable that he's pro-pirate.

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