Does Congress Even Realize That The Courts Appear To Think That SOPA Is Already In Force?

from the does-that-change-the-debate dept

Mon, Dec 19th 2011 12:50pm — Mike Masnick

Venkat Balasubramani and Eric Goldman (who are also posting occasionally on Techdirt these days) are doing an amazing job uncovering a series of lawsuits that suggest many courts are already issuing widespread and questionable injunctions against third party service providers when intellectual property holders come to them demanding vengeance. We've already covered the True Religion case and the Chanel case. It seems worth noting that both True Religion and Chanel have come out in favor of censoring the internet, having sent a letter cheering on both domain seizures by ICE and earlier versions of SOPA and PIPA. And it looks like they figured why wait for the law to change, when they could just convince courts to give them those remedies already.

The link above highlights yet another such case, this time involving Philip Morris. The pattern in all three cases is quite similar. Company claims website is offering infringing works and sues. Court -- without hearing from the site owners (and usually not making any effort to see if the sites are all owned by the same owner) -- issues massive injunctions against third party service providers to take down or otherwise block those sites. As Venkat summarizes, the Philip Morris restraining order includes:

Defendants are enjoined from using any Philip Morris marks, in websites, domain name extensions, links to other websites, search engine databases.
The domain name registrars are directed to transfer the domain name certificates to plaintiff (for deposit with the court).
The registrars are directed to transfer the domain names to GoDaddy, who will "hold the registrations for the . . . domain names in trust . . . during the pendency of [the] action."
GoDaddy shall also update the DNS data so it points to a copy of the complaint, summons, and court documents.
Finally, Western Union is directed to "divert" transfers made by US consumers to three named individuals

All without hearing from the other side. Seem excessive? It sure does. Venkat notes how extraordinary these remedies are. Think about it for a second: based solely on the declaration of a Philip Morris employee, the court is ordering the full transfer not just of websites, but of any funds being sent to a website. That's insane and a clear violation of any reasonable due process.

At the same link, Eric Goldman notes that the sudden appearance of three of these cases suggests that there are probably many more in the system. And he points out that this information certainly seems like it should be relevant to those currently debating these bills in Congress. Do they even realize that the remedies they're describing are already being used by courts?

Separately, he notes the ridiculousness of such extreme punishment when only one side is heard:

From my perspective, the three cases demonstrate the problems with ex parte judicial oversight. Only hearing one side of the story isn't enough to trigger the kind of draconian remedies the courts are granting. In particular, in this case, interdicting money being sent via Western Union is quite troubling. Basically, the court says that money being sent by customers who may have done nothing wrong goes into a holding tank--the customers don't get their money back now (and maybe never?) even if the transaction didn't consummate. It seems like rejecting the money transfers, rather than interdicting the money, would have a lot fairer to the buyers caught in the middle. But they aren't in court to defend their interests, and no one else is speaking up on their behalf, so the rightsowner can make a pure cash grab from potentially innocent buyers. That kind of result wouldn't happen with real due process.

He wonders if there's a way to fix these kinds of abuses of process. In fact, I would suggest that the House Judiciary Committee (and the Senate) would be much better served dealing with the problem of such one-sided extreme court rulings, rather than encouraging more of that with SOPA and PIPA.

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Filed Under: copyright, due process, injunctions, retraining order, seizure, sopa, trademark, websites
Companies: chanel, philip morris, true religion

45 Comments

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Richard (profile), 19 Dec 2011 @ 1:08pm

Eh - I'm confused
I'm just watching the BBC's Dickens spoof "The bleak old shop of stuff". In this story a lawyer (who refuses to even say who he is working for) turns up and confiscates the possessions (and family!) of the hero - on the basis of some obscure law or other. It's all clearluy intended to be a ridiculous spoof right? ... and then I read this post - and wonder...
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- Marcel de Jong (profile), 20 Dec 2011 @ 12:49am
  
  Re: Eh - I'm confused
  Stephen Fry as the villain. Excellent casting, if you ask me. :)
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Drak, 19 Dec 2011 @ 1:11pm

I'm supposing if an invalid claim is made and actions, such as those described above, are taken that the initial site owner has the right to file for damages, lost revenue, etc?

Of course that scenario will just mean the person who can hire the most lawyers wins again.
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Anonymous Coward, 19 Dec 2011 @ 1:17pm

You would think the pro-SOPA people like UMG, etc, would be especially wary of filing lawsuits like this during the SOPA debate, for fear that negative publicity could kill SOPA in congress.

The fact that they aren't shows that they don't need SOPA, since the courts are already rewriting the laws for them.
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- :Lobo Santo (profile), 19 Dec 2011 @ 1:19pm
  
  Re: FTFY
  The fact that they aren't shows that they don't need to worry, since SOPA is already bought and paid for and will pass regardless.
  
  /FTFY
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pixelation, 19 Dec 2011 @ 1:19pm

I think a bunch of senators websites are infringing...
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Anonymous Coward, 19 Dec 2011 @ 1:20pm

If your domain comes up with ICE/US screen stating the site is criminal you might as well close up shop.
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Anonymous Coward, 19 Dec 2011 @ 1:20pm

Maybe judges get brain damaged eating too much.
http://medicalxpress.com/news/2011-12-brain-young.html
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Anonymous Coward, 19 Dec 2011 @ 1:30pm

All this SOPA bullshit, and not a single comment about Prvt Manning's "my girl side did it" defence.

Holy fuck Mike, get off the high horse already.
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- Another AC, 19 Dec 2011 @ 2:05pm
  
  Re:
  Your point escapes me...
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  - Anonymous Coward, 19 Dec 2011 @ 2:09pm
    
    Re: Re:
    The point of Mike's repeated, unending posts about SOPA escapes me. It's like a nutty old homeless man nattering to himself walking down the street. It passed obsessive and went right on to borderline insanity a few days ago.
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    - kirillian (profile), 19 Dec 2011 @ 2:33pm
      
      Re: Re: Re:
      I must have missed the part where the bill already passed and is on it's way to the president's desk. Oh, it's not? Then this discussion is perfectly acceptable. If you don't like it, then leave. Go shill elsewhere.
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    - TtfnJohn (profile), 19 Dec 2011 @ 5:28pm
      
      Re: Re: Re:
      Then I need to note that your repeated, meaningless, dreary and meandering posts in response to posts about SOPA strike me more like the nutty old homeless man than Mike ever has.
      
      Oh, sorry, I forgot. Mike's wrong and you're right. There be pirates out there! You've seen them under the bed at night!
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Anonymous Coward, 19 Dec 2011 @ 1:33pm

Retroactive cover
This makes me think of the telecom immunity legislation.

Our beloved government is making a habit of doing questionable actions and then getting the legislature to push through a law saying that what they are doing is legal.

Perhaps that's part of the reason for the markup hurry?
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- DCX2, 19 Dec 2011 @ 2:49pm
  
  Re: Retroactive cover
  Normally "ex post facto" means you can't punish someone for breaking current laws that didn't exist in the past.
  
  Perhaps it's time "ex post facto" applied in reverse; attempts to legalize previously illegal actions should not render moot prosecution for committing what was used to be a crime when it was still illegal.
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  - Jeffrey Nonken (profile), 19 Dec 2011 @ 3:37pm
    
    Re: Re: Retroactive cover
    Grandfathering.
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DogBreath, 19 Dec 2011 @ 1:40pm

What's next?
I would suspect that these same judges treat Grand Jury Incitements as automatic convictions. Do not collect $200 dollars, go directly to jail.

"Not to worry," says the judge, "you can still appeal your one-sided conviction from the safety of prison, which will also give you access to fine law library that is only available to prison inmates. You should be thanking us."
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- DogBreath, 19 Dec 2011 @ 2:38pm
  
  Re: What's next?
  *Grand Jury Indictments* Is what I meant say.
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DannyB (profile), 19 Dec 2011 @ 1:42pm

The Wild West days are over
Courts are now starting to take seriously their mandate to do what dinosaur industries want without waiting for congress to rubber stamp it with actual legislation such as SOPA and Protect IP.

The wild west days of waiting for congress to pass legislation are over. Courts will now preemptively enforce legislation before it is passed into law, or even introduced as a bill.
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Anonymous Coward, 19 Dec 2011 @ 1:47pm

All without hearing from the other side. Seem excessive? It sure does.

Inasmuch as these cases were subject to Rule 65, doubtlessly there was a good faith attempt to contact the defendant. Problem is, the defendants generally know they're doing something illegal and don't answer summons. So then what? Forget about it That's not an answer and not the way our judicial system works in any capacity.

But the entire premise of your article is off base. This is all pursuant to litigation under existing law. SOPA applies only to foreign websites. What you are in essence arguing is that you want a higher standard for dealing with foreigners than currently exists under US law. That argument is destined to blow up in your face and is precisely the complaint of the pro-SOPA forces right now. Hard to believe you'll get a lot of sympathy with this.
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- Anonymous Coward, 19 Dec 2011 @ 2:07pm
  
  Re:
  Define foreign website.
  
  One based outside the US?
  All websites can be based outside the US, all the big ones at least, they all have servers everywhere in the world, also they buy space in "foreign" servers is that enough to make them foreign?
  
  Or is about the catering of Americans, must they be dedicated to Americans or any American accessing a foreign server is enough to satisfy that rule? Because in that case every major American website portal can be a target.
  
  Also didn't ICE just seized the domains of South Korean websites all of them in Korean?
  Strangely enough the owner of the websites in question was apparently an American company.
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  - Anonymous Coward, 19 Dec 2011 @ 2:43pm
    
    Re: Re:
    Define foreign website.
    
    Not under US jurisdiction. If they use a US registry, they're under US jurisdiction no matter where they are located. Just like a US corporation whose only office is abroad.
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- gorehound (profile), 19 Dec 2011 @ 2:08pm
  
  Re:
  I would not be wanting to allow SOPA/PIPA so quickly.If you are an American then you should realize it will only take a little nudge to do what they are contemplating right on US Soil (property).
  Just look at what the Patriot Act does as that one was created for use against Terrorists.
  
  And also I am one of the Citizens who does share my Art/Music with bands I formed freely and with permission of my old and current bandmates.I use TPB & Other P2P sites to do this.
  I did nothing illegal so I will be hurt right off by these atrocious laws.
  Techdirt has been really awesome in helping us all out to cover what is happening and I have put all the techdirt links on my personal/band Facebook to educate my friends,fans, and followers.
  Keep up the great job Techdirt !!!
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  - kirillian (profile), 19 Dec 2011 @ 2:36pm
    
    Re: Re:
    Interested. Link to your music?
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    - Anonymous Coward, 19 Dec 2011 @ 4:37pm
      
      Re: Re: Re:
      It stinks. He's an embittered, failed creator who couldn't make a living with his music and now resorts blaming his failure on the labels instead of his considerable lack of talent. Hint for Gorehound: Geriatric punk rockers aren't of interest to anyone any more.
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      - TtfnJohn (profile), 19 Dec 2011 @ 5:33pm
        
        Re: Re: Re: Re:
        Which, by the same reasoning, means geriatric true believers who swallow Hollywood's endless claims about "piracy", such as yourself, aren't of interest to anyone. Walking around talking to yourself or not.
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- Another AC, 19 Dec 2011 @ 2:10pm
  
  Re:
  "Problem is, the defendants generally know they're doing something illegal and don't answer summons."
  
  Except that's simply not true. For evidence, I offer as much as you do :) You forgot about the whole innocent until proven guilty thing there...
  
  The rest of your comment isn't worth speaking to, you mention the same wrong facts as every other 'pro-SOPA forces' do, and thus make false conclusions.
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  - Anonymous Coward, 19 Dec 2011 @ 2:41pm
    
    Re: Re:
    Except that's simply not true. For evidence, I offer as much as you do :) You forgot about the whole innocent until proven guilty thing there...
    
    This is civil law. Your claim relates to criminal law, dope.
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    - DCX2, 19 Dec 2011 @ 2:52pm
      
      Re: Re: Re:
      You still didn't provide any citation proving that a summons was ignored, and instead resorted to name calling.
      
      Have much faith in your argument, you do not.
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    - Anonymous Coward, 19 Dec 2011 @ 3:42pm
      
      Re: Re: Re:
      Right, and as we all know civil cases are decided by the legal team with the most funding
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- Anonymous Coward, 19 Dec 2011 @ 2:35pm
  
  Re:
  "Hard to believe you'll get a lot of sympathy with this."
  
  I sympathize with this.
  
  I'm Spartacus!
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Steve R. (profile), 19 Dec 2011 @ 1:58pm

Gingrich Will Save Us
Gingrich came out against activist judges. Unfortunately, I don't think Gingrich would find SOPA unconstitutional.

"According to Gingrich, judges are not following the U.S. Constitution and were subverting elected officials.
Gingrich's statement that he would use U.S. Marshals to arrest judges was in response to CBS's Bob Schieffer's suggested scenario in the case of Judge Fred Biery who was criticized for a ruling that opposed religious speech during a high school graduation ceremony. Judge Biery's ruling was later overturned by a federal appeals court and Gingrich used it to illustrate how some American judges were disregarding "traditional American values."

Read more: http://www.digitaljournal.com/article/316386#ixzz1h1JLYqUT
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- Anonymous Coward, 19 Dec 2011 @ 2:27pm
  
  Re: Gingrich Will Save Us
  So it's perfectly fine to disregard "the constitution" but God forbid we disregard "traditional American values".....
  
  At least we know where their priorities are now....
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  - DCX2, 19 Dec 2011 @ 2:58pm
    
    Re: Re: Gingrich Will Save Us
    Ah yes, Gingrich campaigning for "traditional American values". Like being divorced twice. Like marrying a woman younger than his own daughter. That's traditional American values, alright!
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    - Anonymous Coward, 19 Dec 2011 @ 4:41pm
      
      Re: Re: Re: Gingrich Will Save Us
      Don't forget having an affair while he was pushing Clinton's impeachment and his wife was undergoing cancer treatment. He's a real cocksucker, that one.
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  - TtfnJohn (profile), 19 Dec 2011 @ 5:37pm
    
    Re: Re: Gingrich Will Save Us
    You know, I've always wondered what "traditional [country] values are" that politicians and interest groups are so quick to fall back on when they have noting else to back up their argument.
    
    Even more when you discover that "traditional" is what they decide it is, such as, Gingrich does.
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ervserver (profile), 19 Dec 2011 @ 2:40pm

this stuff will keep happening until somebody get some balls and take this stuff all the way to the Supreme Court...until then communist US govt will do what it pleases
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- Anonymous Coward, 19 Dec 2011 @ 2:46pm
  
  Re:
  this stuff will keep happening until somebody get some balls and take this stuff all the way to the Supreme Court...until then communist US govt will do what it pleases
  
  Real, live Communists have no use for private property rights dipshit. Reload and try again.
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  - Anonymous Coward, 19 Dec 2011 @ 4:06pm
    
    Re: Re:
    Private property rights until they enter the public domain and belong to everyone? That's a funny kind of property you got there, son.
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  - The eejit (profile), 19 Dec 2011 @ 4:11pm
    
    Re: Re:
    I think you'll find that this is a plutocracy masquerading as Elitist Communism (see also - Old Boys' Club in the UK).
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Anonymous Coward, 19 Dec 2011 @ 3:18pm

Proving that...
we not only have the best government money can buy, apparently the best judicial officials also.
That OR their just stupid and/or lazy...
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Jazmine, 19 Dec 2011 @ 4:25pm

Congress no longer working for the public.
It seems like the government is too busy helping the businesses of America to remember the people of America.

When the Gov't stops working for you - the people, it's time to change it.
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cg15 (profile), 19 Dec 2011 @ 4:37pm

I think a bunch of senators websites are infringing...
I think a bunch of senators websites are infringing...
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David Otto, 19 Dec 2011 @ 10:56pm

SOPA Federal Courts Nevada
I'm a Nevada Lawyer if anyone wants me to retain me in these cases.
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Anonymous Coward, 20 Dec 2011 @ 10:56pm

We keep hearing job losts due to pirating... Is there anyone actually performed study on number of job lost due to excessive bogus claims of copyright infringements?
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