Court Effectively Pretends SOPA Already Exists; Orders Domains Seized, De-Linked From Search
from the wow dept
As a whole bunch of folks have sent in a District Court judge in Nevada issued some rather stunning orders lately concerning websites that luxury brands company Chanel has argued "advertise, promote, offer for sale or sell" possibly counterfeit Chanel goods. The order is basically a more expansive private version of SOPA, in which the judge has let Chanel directly "seize" about 600 domains, as well as issued restraining orders and injunctions, including orders to Google, Bing, Yahoo, Facebook, Google+, and Twitter to "de-index and/or remove [the domain names] from any search results pages." Venkat Balasubramani covers the other wide-reaching aspects as well:- an injunction against the defendants prohibiting them from using any Chanel marks or selling any Chanel products;
- an injunction against the top-level domain name registry, directing it to change the registrar of record for the domain names to GoDaddy (!);
- an injunction telling GoDaddy to change the DNS data for the domain names so the domain names resolve to a site where a copy of the case documents are hosted (servingnotice.com/sdv/index.html);
- authorization for Chanel to enter the domain names into "Google's Webmaster Tools" and cancel any redirection of the domain names;
There are all sorts of issues with these rulings that appear to go way, way beyond what the law allows (even if SOPA were passed). And the fact that this includes sites that might only "promote" possibly counterfeit Chanel products? It sounds like many of the sites are entirely clear that they're offering replicas, meaning no likelihood of confusion being at issue. Furthermore, some of the order appears to also bar even the "promoting" of legitimate Chanel products. How is that reasonable?First, I did not get a clear sense that this is an enforcement action against a single defendant. If there's no credible allegation of a conspiracy or an arrangement between whomever is behind these domain names, it strikes me as problematic for Chanel to file a placeholder lawsuit and then add or remove defendants at its convenience.
Second, it was not entirely clear why the lawsuit was in Nevada. The domain names are not registered to a registrar that is based in Nevada, and there's no clear basis for in rem jurisdiction. It's possible that plaintiff picked this jurisdiction as a matter of convenience, but there's no apparent relationship between the alleged counterfeiting activities and the State of Nevada.
Then there's the matter that some of the court's relief is directed at a variety of entities that are not parties to the dispute (including the registrars, the registry, Facebook, Twitter, Google, etc.). I'm not sure how this court can direct a registry to change a domain name's registrar of record or Google to de-list a site, but the court does so anyway. This is probably the most problematic aspect of the court's orders. [Interesting that GoDaddy was chosen as the registrar that the domain names would be transferred to.]
Finally, there's no clear basis to authorize a transfer of a defendant's property pending resolution of a lawsuit to the plaintiff. (See Bosh v. Zavala.) I don't see this as particularly problematic in this case because Chanel is not looking to liquidate the domain names, but it certainly raises due process red flags, given that this is all done with minimal (or no) notice to defendants.
Beyond that, the broad disappearing of these websites, ordering search engines and social networks to totally block their existence, despite the lack of an adversarial hearing, or any allowance for those search engines or social networks to have a say, seems immensely troubling. Why even bother with SOPA at all, when judges feel they can just order broad censorship based on one side's claims? These rulings are quite worrisome. One really surprising bit is that the judge, Kent Dawson, was one of the judges who smacked down Righthaven, so he at least understands how companies can abuse IP rights. It's surprising that he'd issue such a broad reaching order like this.
Furthermore, as Ars Technica points out, the judge doesn't even bother to look at the jurisdictional questions, and seems to order the global disappearance of sites outside the US, without any clear mandate to do so:
Missing from the ruling is any discussion of the Internet's global nature; the judge shows no awareness that the domains in question might not even be registered in this country, for instance, and his ban on search engine and social media indexing apparently extends to the entire world. (And, when applied to US-based companies like Twitter, apparently compels them to censor the links globally rather than only when accessed by people in the US.) Indeed, a cursory search through the list of offending domains turns up poshmoda.ws, a site registered in Germany. The German registrar has not yet complied with the US court order, though most other domain names on the list are .com or .net names and have been seized.Who knows if anyone will even step up to appeal such broadly rulings (probably not), but they set a very scary precedent.
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Filed Under: copyright, due process, injunctions, retraining order, seizure, sopa, trademark, websites
Companies: chanel
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Anyone know where I can get a full text version of the list of web sites?
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Re: Anyone know where I can get a full text version of the list of web sites?
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I would love to see Google ignore this
Point being, this may be a massive overreach of the not-even-enacted-yet SOPA, but by trying to include Yahoo, Google, and Bing, they've basically given license to all three to band together and completely ignore the order. Together, those three probably account for 99% of all web searches. If one ignores the order, the others would probably do so too, just to stay somewhat competitive. I'd love to see the shitstorm if the Justice Department tried to shut any one of them down for ignoring this.
It would be epic.
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Re: I would love to see Google ignore this
Stupid late night study sessions.
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Re: Re: Anyone know where I can get a full text version of the list of web sites?
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Terrifying.
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You don't want gov't action, but you don't want private action either
As I've said, you brush aside REAL problems, yet propose no solutions, instead just argue legalisms.
My opinion is that this judge sees a wrong and is trying to remedy it. (Not all remedies will pass later tests; even the Supreme Court is wrong on Citizens United and MANY others since Dred Scott, however, this looks reasonable.) Not coincidental or contradiction that he's also ruled correctly on Righthaven, simply points up that he DOES view these matters correctly (in other words, as I do... even though despise Chanel).
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Re: I would love to see Google ignore this
Really, do you think the search market for people looking for counterfit Chanel merchandise is so vast that it dictates the actions of Google, Microsoft or Yahoo?
These companies will comply with the order and those sites will simply re-open with a new address.
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Our rules, our ways
Good grief-it's like issuing parking tickets and towing citations for the entire world. All on the say so of a corporation which is having a hissy fit over trademark violations?
Shame on Chanel, too. They're obviously scavenging for the bottom in this one.
Good thing SOPA isn't law, yet. I'm afraid of what's going to happen if it does become law. Worse than this-the government will be able to do it.
Frightening.
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'Who knows if anyone will even step up to appeal such broadly rulings (probably not), but they set a very scary precedent.'
all sites involved should be appealing. not doing so would be stupid!
'I'd love to see the shitstorm if the Justice Department tried to shut any one of them down for ignoring this.'
i hope the Justice Department does try. that would be a very interesting case!
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Re: I would love to see Google ignore this
Andrew Jackson. The Supreme Court claimed fighting Indians was unconstitional (I could be wrong?) but he said to them "You said it was unconstitutional, let's see you enforce it."
Oddly enough, his policies worked and he's considered a badass to everyone that is not Native American...
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Re: You don't want gov't action, but you don't want private action either
Have you ever considered that perhaps the correct solution doesn't include the legal system or the government? Perhaps instead of using the law to beat the customers into submission, they make their own offerings so attractive as to render the pirate offerings obsolete? Then at least, once the pirate threat is gone, your not left with the restrictions you helped create, and can conduct business without a bunch of artificial road blocks....
Just an idea...
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Re: You don't want gov't action, but you don't want private action either
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Re: You don't want gov't action, but you don't want private action either
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Federal Courts + GoDaddy?
They are using HTTP 301 permanent redirects... Since this is only a temporary injunction they should be using HTTP 302 temporary redirects.
The injunction was against "Does" even though some had contact information.
http://co-cochanel.com.websiterecord.com
This has been happening since last year across several district courts. Some of them against "Does", some of them are ID'd:
http://servingnotice.com/oft/index.html
http://servingnotice.com/liu/index.html
http://se rvingnotice.com/lin/index.html
http://servingnotice.com/lin4/index.html
http://servingnotice.com/l i2/index.html
http://servingnotice.com/yan/index.html
http://servingnotice.com/gao/index.html
htt p://servingnotice.com/dai/index.html
http://servingnotice.com/zhiming/index.html
http://servingnot ice.com/t-e-p/index.html
http://servingnotice.com/wu/index.html
http://servingnotice.com/wang/inde x.html
http://servingnotice.com/feng/index.html
And there's more where that came from...
https://encrypted.google.com/search?q=site%3Aservingnotice.com
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First Amendment is so over...
Recently, the New York Times reported on the case of a man facing prosecution for pamphleteering. In case you don't remember your history, political pamphleteering goes back to before the foundation of the republic.
In this reported case, the federal prosecutors don't like what the defendant's pamphlets advocated, and they don't think the defendant should get a jury trial.
So much for the first amendment. And so much for juries.
Most of you will just read the news and feel powerless.
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The total lack of evidence against most of the web sites is also disturbing. It looks like evidence was only presented against three web sites. The rest are presumed to be guilty because those three appeared guilty. It's like saying that some people who wear flannel shirts commit murder, so if you see someone with a flannel shirt who is carrying a gun they must also be murders.
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Federal Courts + GoDaddy
They are using HTTP 301 permanent redirects. Since this is only a temporary injunction they should be using HTTP 302 temporary redirects.
The injunction was against "Does" even though some had contact information.
http://co-cochanel.com.websiterecord.com
This has been happening since last year across several district courts.
Some of them against "Does", some of them are ID'd:
http://servingnotice.com/oft/index.html
http://servingnotice.com/liu/index.html
http://se rvingnotice.com/lin/index.html
http://servingnotice.com/lin4/index.html
http://servingnotice.com/l i2/index.html
http://servingnotice.com/yan/index.html
http://servingnotice.com/gao/index.html
htt p://servingnotice.com/dai/index.html
http://servingnotice.com/zhiming/index.html
http://servingnot ice.com/t-e-p/index.html
http://servingnotice.com/wu/index.html
http://servingnotice.com/wang/inde x.html
http://servingnotice.com/feng/index.html
And there's much more where that came from...
https://encrypted.google.com/search?q=site%3Aservingnotice.com
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Re: You don't want gov't action, but you don't want private action either
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Re: You don't want gov't action, but you don't want private action either
Ban him from all search engines immediately.
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Re: Re: I would love to see Google ignore this
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Re: Re: You don't want gov't action, but you don't want private action either
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Re: Re: I would love to see Google ignore this
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Re: First Amendment is so over...
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Re: You don't want gov't action, but you don't want private action either
Alright Blue, I'm going to copy/paste exactly what I wrote in response to you yesterday. Why am I doing this? Because you obviously love being made to look like an idiot. You over and over again ask for solutions or b*tch that Mike offers none (in regards to piracy or you're guaranteed $100M sunk costs). I would like to point out yet again, Mike actually has offered solutions along with myself and others. Now, I'm trying to be nice here, but enough is enough. You're either a goddamn idiot, a f*cking troll, or just moronically and criminally ignorant/blind to anything you don't want to see. All 3 of those are bad either way. I'm thinking you're a combination of all 3.
Blue, I'm starting to get a good idea of the kind of person you are. You want people to do everything for you. You want to contribute nothing beyond "give me". You sound like more of a freetard than most of the people here accused of being that very thing.
So let's get this out of the way and put it as simply as possible, okay?
(Also, note: we do NOT appreciate your sarcasm in regards to your opening line /right/ nonsense)
There is a wrong way to fight piracy and a right way. SOPA/PIPA are the /wrong/ way (to put it in a format you might understand). Why are they the wrong way to go about doing that? If you need it explained to you after all the articles on exactly that and all the repetitive comments made by myself and others, you're a lost cause and not worth repeating it to again.
The /right/ way to fight piracy, and do so as is being done, is by narrowing SOPA/PIPA. Instead of using overly broad and ill defined terms, make them specific. That's pretty much what EVERYONE here has been saying, including Mike and most opponents of the bills. It's literally, not that hard to think of/do. I cannot make/put it any simpler than that.
That's the right way to fight it in regards to these bills.
Another way is, again I'm getting sick of repeating it, meet the customer's wants/needs. GASP! Yep. That f*cking simple. Ask them what they want, they'll tell you. Then work on providing that. Nothing to it. Netflix and iTunes and Spotify and Pandora and Steam manage to do just that. Provide the people with what they want. Movies/tv shows, music and games. Streamed or downloadable. In as hassle free a way as possible. (This means no sh*tty DRM. Or jumping through hoops of installing this or that just to get your product to work/play.) As cheaply and reasonably priced as possible. (Emphasis on "cheaply and reasonably priced"! No one is saying "free". Not myself, nor anyone else here. We're saying just be reasonable.) Whenever they want it. (Regional delays, etc. are unacceptable in this day and age.)
There. That's two ways to fight piracy. The former is the right way in accordance with new bills/laws. The latter is the right way in general. If the "criminals" and thieves can provide a better product than the "legal" alternative/providers, you have a serious problem on your hands. And it isn't the "illegal" product being offered by "pirates". It's YOU. [points finger at you] And your antiquated way of doing things.
Now if you'll excuse me, I'm going to go work on seeing if I can get someone to come up with a "better business model" that is guaranteed to get me back the $100M I want to sink into a movie. :P [walks off and then takes a quick peek back, sees you still here and sighs] "You and your false promises, Blue."
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Re: I would love to see Google ignore this
"...the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate,"
And it was actually Andrew Jackson, referring to a Supreme Court ruling upholding Cherokee sovereignty. In its context, it was actually a pretty dick move.
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Re: Re: I would love to see Google ignore this
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Re:
Previously, as a private company, they had quite a bit more leeway to "act" upon items of significance politically or environmentally. This is no longer the case:period.
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Under what authority?
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Re: You don't want gov't action, but you don't want private action either
He also wants those people to have a chance to contest the chargers before their property is seized. You know, due process and all that.
As another commenter said, you love you some false dichotomies.
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Re:
Godaddy *is* the Feds.
Silly Wabbit.
CBMHB
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Decreases the attractiveness of Online Business in the United States...
The startling thing is none of this does anything to decrease demand of the products. I am now much more aware of counterfeit goods online and where to acquire said goods than even just one year ago.
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When and how can we make thi9s just go away ?
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Re: Re: Re: Anyone know where I can get a full text version of the list of web sites?
http://www.nchsoftware.com/documentconvert/index.html
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Re: Re: You don't want gov't action, but you don't want private action either
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Re: Re: You don't want gov't action, but you don't want private action either
Let's just pretend he doesn't exist. There's nothing to be gained anymore from pointing out the obvious to him.
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On the other hand...
Its a lot easier to compete when you can change the rules at your whim.
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Then again....
Then see how Chanel likes internet obscurity. Be careful what you wish for...
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Re: Re:
There are other search engines http://yacy.net/en/ that are at least in theory more resistant to government interference. If Google has to censor a large number of web sites then things like YaCy become more attractive, and that hits directly at shareholder interests.
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Sooo... the rest of the world simply "jumps ship" then?
Somehow I don't see this as too far fetched or unrealistic. If you're in the US... welcome to your new padded-walled garden. *shrug*
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Re: You don't want gov't action, but you don't want private action either
> instead just argue legalisms
Since copyright itself is nothing but a legalism, arguing anything but would be pointless and counterproductive.
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Re: Re: Re: I would love to see Google ignore this
But Andrew Jackson had the first pleasure of a man to try to assassinate him, to which he beat the guy repeatedly with his cane. His aides had to stop him from killing the man.
Teddy did some awesome things.
Jackson just did them first.
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Re: You don't want gov't action, but you don't want private action either
It may be near impossible for you to come to any other conclusion, but that's simply an intellectual failing on your part.
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Is the government going to decide who owns what and for what purpose now?
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Re: You don't want gov't action, but you don't want private action either
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Re: Re: Re: Re: I would love to see Google ignore this
Afterwards, the pistols were both inspected and it was determined they were both in perfect working order. No explanation was found for why they did not fire. (Some of course attribute it to the fact that even the pistols/rounds were afraid of Andrew Jackson. The guy did indeed live through more duels than any other President and in fact upon his deathbed, his final words were that he regretted not having had the opportunity to kill, in a duel I believe, the guy who was his Vice President.)
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Re: Re: Re: You don't want gov't action, but you don't want private action either
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Re:
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Re: Re: First Amendment is so over...
"“strongly suggests that jurors lie to judges in order to avoid being excused from a panel,”"
For some reason, I don't find it that hard to believe that the brochures did suggest such a thing and for someone to encourages dishonesty (or for a system to encourage dishonesty by otherwise discriminating against jurors for bad reasons that could yield a non-representative jury) doesn't seem like something we should support.
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Dark little secret
The dark little secret in the federal judiciary is that some opinions are authored by law clerks, i.e., recent law school graduates.
http://en.wikipedia.org/wiki/Law_clerk
What's the chance of a 25-year old law clerk who majored in history or political science as an undergrad (before going on to law school) having an understanding of the internet?
I doubt that the judge gave this opinion more than a passing glance from his fishing cabin.
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Teddy Roosevelt
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Re:
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"Chanel" Sellers
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Re: You don't want gov't action, but you don't want private action either
The solution, my friend, is for the copyright industries to leave private property that is not theirs - like the Internet - alone.
When it comes down to rights, the Internet simply does not care about the copyright industries, whether they live or die. If they leave the private property that is the Internet alone (or use it to make money through trade, not force), then they are no business of ours and we ignore them, perhaps even buy some of their stuff sometimes if it pleases us.
If they attack and try to control and destroy the structure and free order of the Internet to eke the final bloody cent out of their government-granted monopolies, we retaliate against them with the exact same aim - their complete and utter destruction - just the targets reversed.
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Brand
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