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 @ 11:10am

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

    It matters a great deal.

    If someone is charged with a crime, then there has been some level of scrutiny gone over the evidence, and multiple parties (for example, the police and district attorneys) agree that the evidence is sufficient to arrest and hold him.

    On the other hand, accusing someone of a crime requires no evidence (and under SOPA, it doesn't even require someone swearing under penalty of perjury). I could call up the police and say "There's this guy Willton commenting on Techdirt and he deals drugs. Arrest him, seize all his property, then throw him in jail until he gets a trial. And after the trial, if he's innocent, he can have his stuff back." Sound fair to you?

    No, it doesn't. But, again, I'm not discussing the merits of SOPA; I'm discussing the merits of what the judge did IN THIS CASE. SOPA is not a law yet, so whatever SOPA would authorize is immaterial to this case.

    Not according to the Supreme Court. They ruled in effect that money equals speech in regards to paid advertisements during political campaigns.

    Citizens United is totally inapposite to whether commercial speech is entitled to broad 1st Amendment protections. The paid advertisements in Citizens United were considered political speech, not commercial speech. That is not the case here. And in any event, there's plenty of precedent saying otherwise with regard to copyright and trademark infringement.

    Since we're referring to ICE's domain seizures here, the court order was ex parte. Also, it took months of effort for Rojadirecta to even find anyone they could complain to about the domain seizure.

    Different case with different circumstances. Rojadirecta's case is not similar to this one.

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