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 @ 4:14pm

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

    If the judge is keeping up with what is happening all over in regards to these types of cases, then he clearly should have looked deeper or waited to rule until he had all the facts.

    The judge did not have the luxury of waiting; he had a duty to render judgement based on the evidence placed before him, and the defendant failed to provide any evidence when asked to do so. It's not fair to the other interested parties to force them to wait around until the defendant finds it convenient to respond to a court summons.

    If you want to hold all people and all websites responsible for everything that happens on the internet, then the judge clearly screwed up for not keeping up with the relevant happenings in the law.

    Have you ever seen a federal district court judge's docket? It's immense, and IP cases like this typically take up a small fraction of his docket. Unless the judge likes IP cases, the likelihood that the judge is "keeping up with the relevant happenings in [IP] law" is low.

    And in any event, unless we're talking about new legislation or binding precedent, it is not the judge's responsibility to "keep up with the relevant happenings in the law". Just because some other trial court found a certain way in one case does not mean that he must also in his. It is up to each of the parties in the case to educate the judge as to what the law is in other circuits in order to persuade him to find in its favor. If one party refuses to provide such education (or even show up, for that matter), then that party should not be surprised that the judge renders an unfavorable decision. If anybody screwed up, it's the party who didn't show.

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