Shouldn't Federal Judges Understand That Congress Did Not Pass SOPA?

from the hello-prior-restraint dept

Wed, Oct 4th 2017 11:55am — Mike Masnick

We've discussed in the past the completely ridiculous attacks on Sci-Hub, a site that should be celebrated as an incredible repository of all the world's academic knowledge. It's an incredible and astounding achievement... and, instead of celebrating it, we have big publishers attacking it. Because copyright. And even though the purpose of copyright was supposedly to advance "learning" and Sci-Hub serves that purpose amazingly well, so many people have bought into the myth of copyrights must "exclude" usage, that we're in a time where one of the most amazing libraries in the world is being attacked. Sci-Hub lost its big case earlier this year, and almost immediately others piled on. Specifically, back in June, the American Chemical Society (ACS) jumped in with a similar "us too!" lawsuit, knowing full well that Sci-Hub would likely ignore it.

ACS has moved for a default judgment against Sci-Hub (what you tend to get when the defendant ignores the lawsuit), which it would likely get. However, in an extremely troubling move, the magistrate judge reviewing the case for the Article III judge who will make the final ruling has recommended forcing ISPs and search engines to block access to Sci-Hub. After recommending the standard (and expected) injunction against Sci-Hub, the recommendation then says:

In addition, the undersigned recommends that it be ordered that any person or entity in privity with Sci-Hub and with notice of the injunction, including any Internet search engines, web hosting and Internet service providers, domain name registrars, and domain name registries, cease facilitating access to any or all domain names and websites through which Sci-Hub engages in unlawful access to, use, reproduction, and distribution of ACS's trademarks or copyrighted works. Finally, the undersigned recommends that it be ordered that the domain name registries and/or registrars for Sci-Hub's domain names and websites, or their technical administrators, shall place the domain names on registryHold/serverHold or such other status to render the names/sites non-resolving.

So, this is kind of incredible. Because, as you might remember, there was a big fight a little over five years ago about a pair of bills in Congress called SOPA and PIPA that proposed allowing for such an order being issued to third parties like search engines, ISPs, domain registrars and the like, demanding they block all access to certain websites. And, following quite a public outcry (which also explained why this approach would do serious harm to certain security standards and other technical aspects of how the internet works), Congress backed down and decided it did not want to enable courts to issue such orders.

So why the hell is Magistrate Judge John F. Anderson recommending such an order?

At the very least, it seems problematic. Even if you ignore the Sci-Hub part of the equation (since it ignored the lawsuit, a default judgment was basically inevitable), you should be concerned about this. Here's a court order binding a very large number of non-parties to the lawsuit to completely block access to a variety of websites, without any sort of due process. One hopes that ISPs, domain registrars and search engines will push back on such an overbroad order -- one that even Congress realized was a step too far and never authorized.

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Filed Under: copyright, dns, injunctions, intermediary liability, john f. anderson, search engines, site blocking, sopa
Companies: acs, sci-hub

23 Comments

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Reader Comments

The First Word

“

SOPA Box

Federal Rule of Civil Procedure 65(d)(2) states:

The [injunction] order binds only the following who receive actual notice of it by personal service or otherwise:

(A) the parties;

(B) the parties’ officers, agents, servants, employees, and attorneys; and

(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).

On page 12, the magistrate uses that exact language. However, everything after the phrase "in addition" is outside the scope of the Court's authority to grant an injunction and should be rejected by the District Court.

—TechDescartes

”

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Nigel, 4 Oct 2017 @ 12:01pm

Magent links
Has someone script fu'd that stuff into a torrent file yet? Someone should hurl the entire thing up to the usual suspects.
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Anonymous Coward, 4 Oct 2017 @ 12:10pm

Wow, Mike. I see 1L law students offer better legal analysis on their first day of law school. How many years have you been following the law on these things?

Here's an idea: Why not discuss the actual authority invoked by the court to support the recommended order? There is zero reason to cite SOPA since, as you well know, SOPA is not the law. Why not discuss the actual law? And, really, you just throw out "due process"? I guess you don't have an actual argument there either.

Your "analysis" is a total joke, Mike. You are all hot air. How is it possible that you have nothing of substance to say after two decades of doing this. Total. Joke.
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NSAbait (profile), 4 Oct 2017 @ 12:39pm

Whack-a-mole builds strong muscles. Don't forget to eat your vegetables.
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Anonymous Coward, 4 Oct 2017 @ 12:41pm

Re:
You give a totally convincing argument as to why Mike is wrong, and the lack of any citations of relevant laws make you argument irrefutable.
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Anonymous Coward, 4 Oct 2017 @ 12:44pm

Formalities
Actually passing SOPA would have just been a formality. They intend to implement it whether it passed or not.
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Anonymous Coward, 4 Oct 2017 @ 12:50pm

Re:

Your "analysis" is a total joke, Mike. You are all hot air. How is it possible that you have nothing of substance to say after two decades of doing this. Total. Joke.

Projecting much?
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TechDescartes (profile), 4 Oct 2017 @ 1:04pm

SOPA Box
Federal Rule of Civil Procedure 65(d)(2) states:

The [injunction] order binds only the following who receive actual notice of it by personal service or otherwise:

(A) the parties;

(B) the parties’ officers, agents, servants, employees, and attorneys; and

(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).

On page 12, the magistrate uses that exact language. However, everything after the phrase "in addition" is outside the scope of the Court's authority to grant an injunction and should be rejected by the District Court.
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Anonymous Coward, 4 Oct 2017 @ 1:34pm

Re:
I think the vitriol in your comment is unnecessary and overstated, not really in pursuit of improvement but rather to serve your own emotional ends.

That said, I do agree that the article would benefit from trying to answer your question "Why not discuss the actual authority invoked by the court to support the recommended order?" Bringing up the non-passing of laws that would clearly support the judge's choice is not irrelevant, but going into a bit more detail on what the choice IS based on would be helpful to me.

It does come off a bit like off the cuff reporting and moralizing without digging in, and I'd love to see a bit more meat to the article as well. I agree it came off as a bit shallow and almost more of a retweet than a post by an analyst (and Mike: let me be clear, I do like a good amount of the work you put forth on this site! I don't want my silence on your good pieces to give the wrong impression that I'm only negative towards you! Hopefully you take my words in the spirit with which they were meant)
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Uriel-238 (profile), 4 Oct 2017 @ 1:35pm

On the very same day as the SOPA blackout...
...Kim Dotcom was arrested in a big dramatic home raid (despite as he noted his travels to work and back were extremely routine) but at that point we all learned that the United States Department of Justice give zero fucks about actual law.
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ECA (profile), 4 Oct 2017 @ 4:38pm

???????????
Is there a CR on being a Publisher of Sci articles??
I cant find it..not easily..

"However, many things can not be copyrighted including names, facts and ideas. While those, in some cases, can be protected by other types of intellectual property, including trademark and patent, they can not be protected under copyright."

"You can license others to use a copyrighted work and even sell it or give it away. This is why, when publishing a work, it’s important to understand what you are granting the journal. Is it a copyright transfer or a license? If it it’s the latter, what are the terms of that license?"

Now, are the Creators GIVING away their OWN CR??
And DID was Sci-hub given permission from the Arthur..
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ECA (profile), 4 Oct 2017 @ 4:41pm

Re: On the very same day as the SOPA blackout...
PROBLEM with this is..
How much POWER does the USA gov have in other nations..

NONE!!..

And what happened was the USA gov. was NOT GIVEN PERMISSION..
AND the property was REMOVED OUT OF THAT NATION..
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Anonymous Coward, 4 Oct 2017 @ 5:01pm

When defendant doesn't bother to show up...
then a court may well hand you the moon because all allegations are taken as fact -- THOUGH, even then must be substantiated.

You left out highly interesting point of because it'd be FUTILE. This case is truly open and shut. Sci-Hub is guilty of copyright infringement. 4.8 million, but won't matter after the prior $15 million judgment...

2nd: evidently you've already forgotten that a mere district court in the wilds of British Columbia among the lumberjacks ORDERED third-party mighty globalist Google to take down all mention of whatever copied product it was that we're not supposed to mention. Google pushed that all the way to CSC only to find that, yes, courts CAN order third-parties to comply.

---

PS: entered LATE because getting so don't care. Techdirt now makes a scarce product, but it's not more valuable. You're apparently out from under, but what are you doing with your free speech that's worth MY while?
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norahc (profile), 4 Oct 2017 @ 5:15pm

Let's see...

Option A) try to convince a couple hundred of Congressmen, 45-60min plus Senators and the President to pass SOPA/PIPA type laws and have to deal with the public backlash or;

Option B) convince a judge to do it by judicial order, establishing a precedent and rendering the public backlash moot. This option comes with the added bonus that you can keep retrying it till you get the results you want as long as you don't establish a negative precedent.

Are we really surprised?
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Anonymous Coward, 4 Oct 2017 @ 6:30pm

Re:
So what WAS the authority they cited? I don't think they cited any for that particular part of the order, although I could have missed it.
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Anonymous Coward, 4 Oct 2017 @ 6:40pm

Re:
If SOPA wasn't needed, and can't be cited, you wouldn't have bitched so much when it didn't pass. Sucks for you, doesn't it?
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Anonymous Coward, 4 Oct 2017 @ 8:40pm

Re:
Wow, I'm so glad we had your astute analysis at hand!
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Anonymous Coward, 4 Oct 2017 @ 8:41pm

Re: When defendant doesn't bother to show up...
lol
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That One Guy (profile), 4 Oct 2017 @ 8:53pm

Re:
You forgot one that was brought up again recently.

Option C) Slip the law/language you want into a 'trade' agreement, then put pressure on congresscritters to 'equalize' the laws between countries, harping on about 'meeting our international obligations'.
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Anonymous Coward, 4 Oct 2017 @ 9:18pm

Re: When defendant doesn't bother to show up...
Except that Elsevier is funded by corporations. I thought you hated corporations? Oh, right. Corporations only qualify for your hate if it's Google. You'd deep-throat other corporations any other time.

And if Techdirt isn't making speech worth your while then what the fuck are you doing here, instead of looking for speech that's worth your while? Bloody hell, you're an idiot and a masochist.
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Anonymous Coward, 4 Oct 2017 @ 11:10pm

Re: SOPA Box
Assuming the district judge actually reads what the magistrate wrote, I'd imagine the district judge would give his colleague a firm though judicially polite "what law school did you go to??" response and rule correctly. If he doesn't the appeals court almost certainly would as a matter of law.

The problem is and always will be default judgements. They basically end up complying with everything the plaintiff seems to want, whether it's legal or not. In fact, from what I can tell, this is the entire reason for some lawsuits, to defraud the court system into issuing injunctions via suing non-existent or purposely wrong parties to get otherwise protected speech removed from the Internet.
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MyNameHere (profile), 5 Oct 2017 @ 1:23am

Book thrown
Sci-hub didn't respond to the lawsuit, and as such, the judge is generally well within his (or her) rights to throw the book at them. The scope of the judge's ruling is limited only by the law.

I think what is key here is the phrase "with notice of the injunction". It means that other parties are not required to follow the judgement until notified. After that point, they can ignore it and risk further legal implications.

Remember that each and every one of them could be served with DMCA notification and be liable if they didn't take appropriate action where possible to either remove the content in question or render it "unavailable". With the judgement in hand, it's very hard for them to argue otherwise.

Now, they are free to ignore it, at their peril. It may not be binding, but between the judgement and DMCA, they would have a very hard time not taking some sort of action, even if that action is to file lawsuit to try to avoid responsibility.

Yes, the judge's words are not binding - but the judgement does not suddenly render all the other existing laws null either.
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Bergman (profile), 8 Oct 2017 @ 1:12pm

Re: Re: SOPA Box
The thing is though, if a court issues an injunction to someone that is not a party and not in concert or in participation with a party -- and therefore is not within the judge's jurisdiction -- how can the injunction be binding?

What's the penalty for ignoring a completely invalid injunction?
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Bill Rosenblatt, 15 Oct 2017 @ 5:02am

"In privity"
I'm late to this discussion, but I think one thing that no one has mentioned here is worth mentioning. The magistrate's recommendations encompass nonparties such as ISPs and search engines, but they must a) be served notice and -- and here's the important part -- b) be "in privity with" Sci-Hub to qualify for the injunction. Part a requires that ACS go around serving notices of the injunction (according to the legal definition of "service"), which is annoying but doable. Part b requires that ACS establish that ISPs and search engines have meaningful relationships with Sci-Hub. One definition of "privity" is "A legal relationship between two parties based on contract, estate, or other lawful status." Regardless of whether the court has the power to issue injunctions on nonparties, those nonparties (Comcast, Google, etc.) are going to push back HARD against the idea that they are in privity against Sci-Hub.
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