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 @ 2:17pm

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

    400 domain seizures have been enacted. Are you telling me that all of them are emergencies?

    No. I'm telling you that the ones where a Request for a Temporary Restraining Order was filed, it was deemed an emergency by the plaintiff. Those seizures could also have been the result of a preliminary injunction or a default judgment. You'd have to sort through them to decide which is which.

    They're all locked up behind the screen where no one can review them for a future court date that has been undecided.

    Yes, unless the defendant decides to push the issue. You'll likely find that few defendants do, however, because they likely believe that they will lose. Chitika is an exception.

    By the way, why does it matter that "no one can review them"? Is it your business to do the judge's job for him?

    Judging from the fact that copyright holders are making out like bandits based on economic evidence, I find your claims of loss to be highly dubious.

    I'm not the one making claims to losses; the plaintiffs are. If you find them so dubious, question them. Or better yet, look through the cases where such claims are made. The court documents in such cases are available to the public on PACER.

    By all means, they should be able to present evidence of economic hardship before the site is taken down. But no harm has been shown so far

    You sure about that? Did you read the papers submitted by the plaintiffs in these cases? All of them? Or are you just presuming that these plaintiffs are pulling the wool over the eyes of the judiciary?

    Judging from how the domain seizures have occurred, there is nothing showing actual economic evidence of wrongdoing.

    You mean nothing to your satisfaction. Something tells me that you are hardly an unbiased judge in that respect.

    Where is your proof that a website's existence is harming a copyright owner?

    Why don't you ask the copyright owner itself? Check the substantive documents they submit in these cases. Do your own due diligence and quit asking me to do it.

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