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.

Reader Comments

Subscribe: RSS

View by: Time | Thread


  1. identicon
    Willton, 6 Dec 2011 @ 1:07pm

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

    With domain name seizures, I just don't see the need. Why is it such a problem to notify both parties of the hearing? If the defendant doesn't show then a default judgement is awarded to the plaintiff. It's almost like the plaintiffs are worried about some sort of precedent being set against them, but if the case is strong enough, why worry?

    Why is it a problem? Because often times, there is no time to do so. TRO's are reserved for emergencies only, and when valuable property rights are at stake, the rights holders want to act immediately to avoid future loss. If a property holder recognizes that harm is being done to him/her, then I do not see why the holder has to go through a waiting period to have his/her legitimate rights vindicated while the harm continues. So, if the case warrants it, the judge issues the TRO, schedules a preliminary injunction hearing, and provides notice to all parties involved.

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Shop Now: Techdirt Logo Gear
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.