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 @ 8:55am

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

    Keep in mind that a police officer is arresting someone they are accusing of a crime, in those cases. When a private party is accusing you of something, nothing is (should be) seized. ICE should not be able to say it wants your stuff without accusing you of a crime and subsequently prosecuting you.

    No? So you disagree with the whole notion of a temporary restraining order or a preliminary injunction? Should an alleged infringer be allowed to continually inflict irreparable harm against a right-holder's interests until a hearing takes place? If so, what incentive does the alleged infringer have to show up for this hearing?

    I don't think you understand the purpose of a temporary restraining order. First, it is designed to maintain the status quo and prevent imminent and irreparable harm until a judge can adjudicate the dispute. Second, it is temporary, not permanent. If the alleged infringer ultimately wins, ICE gives back the property.

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