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 @ 9:59am

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

    Strawman much? Nice attempt at deflecting the thread, but you are missing the most important part of what many websites are: places for people to interact and participate in their First Amendment right of FREE SPEECH. While the actual code and design of the site is inanimate, the site member's speech is guaranteed by the Constitution. Whether you are capable of making this connection may be dependent on who is cutting your salary checks, but for the majority of Americans, their right to FREE SPEECH is sacrosanct.

    Now that's a strawman. Can you tell me if any protected speech being conducted at the site in question? You can bloviate about generalities all you like, but we are talking about a specific case here. If not, then it appears that all those keystrokes about the 1st Amendment were in vain.

    And part the most important part of DUE PROCESS is the right of every American citizen to confront their accusers is a court of law with the second most important part being the presumption of innocence prior to an adversarial process in the courts.

    Those rights are all based in criminal law and procedure. This is a civil case, not a criminal one.

    While it is true that in cases of violent crime, a suspect may be arrested and detained prior to trial, it is also true that this is a compromise that is included in deference to continued public safety - not as some standard way to deal with violent crime in general. This is an important distinction you ignore completely.

    It is, but it's also one that the hard-liners regarding seizures don't recognize either. My point is that certain situations are more nuanced and require more careful consideration than that provided by the commentariat here.

    Copyright infringement IS NOT violent crime and no one in the public is threatened by it which means that the above compromise does not apply - period.

    No kidding. But then again, no one is being arrested for copyright infringement in this case. All that's happening is that a domain name is being temporarily seized.

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