by Mike Masnick
TorrentFreak has the exceptionally troubling story of a federal district court in Oregon issuing an incredibly broad and questionable order,
effectively wiping a bunch of websites out, without ever letting the
websites in question know that they were being "tried" in court. The
request came from ABS-CBN, a giant Filipino entertainment company
arguing infringement, of course. But the argument against these sites is somewhat questionable already, made worse by the demand that the whole thing be done under seal (without alerting the site operators). Then Judge Anna Brown granted the temporary restraining order, basically deleting these sites from the internet, without even a sniff of an adversarial hearing.
You may recall that the entertainment industry insisted that SOPA was needed for exactly these cases -- overseas sites they claimed were "rogue" sites dealing in infringement. They claimed there was no way to take them down. And, even SOPA had more limitations than what Judge Brown allowed here. If you have rogue judges like Brown issuing orders like this, who needs SOPA. It's already in place in her view of the world.
The complaint itself is raising some questions, as it makes long-debunked claims such as saying that the sites use of "meta tags" boost how the sites show up in search engines. That may have been true in the 90s, but it hasn't been true for over a decade, at least. Further, the complaint argues that the site operators have some sort of proactive requirement to "implement means to prevent infringement," but the law requires no such tools or filters -- only that the sites properly respond to takedown notices for copyright infringement (trademark is a bit different, but the trademark claims here are also quite weak).
The filing was done under seal based on the bogus excuse that if the sites operators were alerted they might be "tipped off" that something was happening and make an effort to prevent the sites from being shut down. We'll get into why that goes against Supreme Court precedent and the First Amendment in a moment, but first let's look at how broad and ridiculous the actual restraining order is. The judge grants the restraining order against the defendants ordering them to stop making use of ABS-CBN trademarks and copyrights, which isn't too surprising. But then stretches the order to include tons of non-parties to the lawsuit:
The ruling is extremely questionable. The whole reason why the entertainment industry pushed so hard for SOPA was because they knew you couldn't pull a stunt like this. It seems that Judge Brown doesn't know about this or doesn't care. That's what happens when you only hear one side of an argument in a case. However, as we've discussed in the past, such one sided rulings that shut down entire websites with no notice to the operators of those websites, are illegal under the Supreme Court's ruling in Fort Wayne Books v. Indiana. When it comes to any sort of expressive content, the court held that seizing the content prior to an adversarial hearing violates the First Amendment:
I actually spoke to Rob Holmes, an "intellectual property cybercrime consultant" who is working with ABS-CBN in this case. Holmes is a Techdirt reader and someone whom I've had good discussions with on related subjects in the past -- but he's obviously defending this ruling. As he told me:
Rob's comparison of this to a "crackhouse" and calling them criminals is also dangerously misleading. First, this a civil, not criminal case. Second, as the Supreme Court noted, when you're dealing with things like drugs, it's reasonable to seize it. When it's expressive material, you can take or copy a single example for the purpose of evidence, but you cannot shut the speech down. But that's what the judge did here. The claim that the case "proved beyond a shadow of a doubt" that they were bad actors is simply laughable as well. Again, only one side of the story has been told here, and already in the complaint itself there are highly questionable arguments (such as arguing that the sites had a requirement to take proactive action against possible infringement).
Whether or not you have to "play whack-a-mole" (and as a trademark expert, Rob should know that it's actually whac-a-mole) to stop scammers that does not remove the rights of those who operate the sites. And those rights include the First Amendment and the right to an adversarial hearing before expressive content -- websites -- are taken out of commission.
Who knows if the site operators will really fight back here. They may not. They may, in fact, be engaged in infringement and not wish to challenge any of this in court. But, even so, that doesn't change the massively problematic nature of this move by ABS-CBN, and the denial of basic due process and the First Amendment to the operators of those sites. People have rights for a reason. We don't just stomp them out without due process just because one party has told a court that they're "bad actors."
You may recall that the entertainment industry insisted that SOPA was needed for exactly these cases -- overseas sites they claimed were "rogue" sites dealing in infringement. They claimed there was no way to take them down. And, even SOPA had more limitations than what Judge Brown allowed here. If you have rogue judges like Brown issuing orders like this, who needs SOPA. It's already in place in her view of the world.
The complaint itself is raising some questions, as it makes long-debunked claims such as saying that the sites use of "meta tags" boost how the sites show up in search engines. That may have been true in the 90s, but it hasn't been true for over a decade, at least. Further, the complaint argues that the site operators have some sort of proactive requirement to "implement means to prevent infringement," but the law requires no such tools or filters -- only that the sites properly respond to takedown notices for copyright infringement (trademark is a bit different, but the trademark claims here are also quite weak).
The filing was done under seal based on the bogus excuse that if the sites operators were alerted they might be "tipped off" that something was happening and make an effort to prevent the sites from being shut down. We'll get into why that goes against Supreme Court precedent and the First Amendment in a moment, but first let's look at how broad and ridiculous the actual restraining order is. The judge grants the restraining order against the defendants ordering them to stop making use of ABS-CBN trademarks and copyrights, which isn't too surprising. But then stretches the order to include tons of non-parties to the lawsuit:
Upon Plaintiffs' request, those with actual notice of the injunction, including any Internet search engines, Web hosts, domain-name registrars, and domain name registreies or their administrators, shall cease facilitating access to any or all domain names and websites through which Defendants engage in the (i) copying, distribution, performance, and promotion of Plaintiffs' copyrighted works and\or broadcast content or (ii) use of the ABS-CBN MarksIt also orders domain registrars to hand over the domains to ABS-CBN and to block further transfers. Again, all of this is done without ever notifying the defendants, who are named as Jeffrey Ashby, Lenie Ashby and a bunch of Does operating a variety of domain names.
The ruling is extremely questionable. The whole reason why the entertainment industry pushed so hard for SOPA was because they knew you couldn't pull a stunt like this. It seems that Judge Brown doesn't know about this or doesn't care. That's what happens when you only hear one side of an argument in a case. However, as we've discussed in the past, such one sided rulings that shut down entire websites with no notice to the operators of those websites, are illegal under the Supreme Court's ruling in Fort Wayne Books v. Indiana. When it comes to any sort of expressive content, the court held that seizing the content prior to an adversarial hearing violates the First Amendment:
In a line of cases dating back to Marcus v. Search Warrant, 367 U. S. 717 (1961), this Court has repeatedly held that rigorous procedural safeguards must be employed before expressive materials can be seized as "obscene." In Marcus, and again in A Quantity of Copies of Books v. Kansas, 378 U. S. 205 (1964), the Court invalidated large-scale confiscations of books and films, where numerous copies of selected books were seized without a prior adversarial hearing on their obscenity. In those cases, and the ones that immediately came after them, the Court established that pretrial seizures of expressive materials could only be undertaken pursuant to a "procedure `designed to focus searchingly on the question of obscenity.' " Id., at 210 (quoting Marcus, supra, at 732). See also, e. g., Lee Art Theatre, Inc. v. Virginia, 392 U. S. 636 (1968).And yet... the judge appears to ignore that entirely. That's incredibly troubling for the precedent it sets. It may very well be true that the sites in question were engaged in infringing activity and deserve to lose any lawsuit filed against them. But it's also possible that they were not engaged in such activities -- and yet their sites are preemptively shut down and destroyed, without them even knowing there was a legal proceeding under way. That's prior restraint.
We refined that approach further in our subsequent decisions. Most importantly, in Heller v. New York, 413 U. S. 483, 492 (1973), the Court noted that "seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding." As a result, we concluded that until there was a "judicial determination of the obscenity issue in an adversary proceeding," exhibition of a film could not be restrained by seizing all the available copies of it. Id., at 492-493. The same is obviously true for books or any other expressive materials. While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the publication may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing. Ibid.; see New York v. P. J. Video, Inc., 475 U. S. 868, 874-876 (1986).
Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved. Lo-Ji Sales, Inc. v. New York, 442 U. S. 319, 326, n. 5 (1979). It is "[t]he risk of prior restraint, which is the underlying basis for the special Fourth Amendment protections accorded searches for and seizure of First Amendment materials" that motivates this rule. Maryland v. Macon, supra, at 470. These same concerns render invalid the pretrial seizure at issue here.
I actually spoke to Rob Holmes, an "intellectual property cybercrime consultant" who is working with ABS-CBN in this case. Holmes is a Techdirt reader and someone whom I've had good discussions with on related subjects in the past -- but he's obviously defending this ruling. As he told me:
The subjects will have plenty of opportunity in the near future to defend their actions. We proved beyond a shadow of a doubt that they were bad actors and, rightfully, the judge made us work hard to prove it.I have to take issue with nearly everything that Rob says here. The fact that they'll have plenty of opportunity after the fact to dispute the charges against them is besides the point. Who knows if this is a legitimate operation or not, but if it is, and this action totally destroys it, then it's a bit late to go and complain to the courts after it happened. The whole point of the Supreme Court ruling discussed above is that you have to have an adversarial hearing first. The whole "contingency plan" argument is bogus as well. Any action required in the restraining order could easily be issued at a later date against any other sites that these individuals happen to set up as well.
The reason a case is filed under seal is so that the criminals do not have time to put a contingency plan into action. Otherwise our efforts would not be effective. It's no different than conducting a raid on a crackhouse. This operation is not only making financial profit from their piracy, but their ads contained malware that infected the computers of all of their users. They are also employing other black-hat techniques in attempts to make money.
You know my case history. The whack-a-mole game is a scam for all involved. From an IP enforcement standpoint, when someone messes with your company's livelihood, you stop them. And you make sure that all watching are discouraged. Period.
Rob's comparison of this to a "crackhouse" and calling them criminals is also dangerously misleading. First, this a civil, not criminal case. Second, as the Supreme Court noted, when you're dealing with things like drugs, it's reasonable to seize it. When it's expressive material, you can take or copy a single example for the purpose of evidence, but you cannot shut the speech down. But that's what the judge did here. The claim that the case "proved beyond a shadow of a doubt" that they were bad actors is simply laughable as well. Again, only one side of the story has been told here, and already in the complaint itself there are highly questionable arguments (such as arguing that the sites had a requirement to take proactive action against possible infringement).
Whether or not you have to "play whack-a-mole" (and as a trademark expert, Rob should know that it's actually whac-a-mole) to stop scammers that does not remove the rights of those who operate the sites. And those rights include the First Amendment and the right to an adversarial hearing before expressive content -- websites -- are taken out of commission.
Who knows if the site operators will really fight back here. They may not. They may, in fact, be engaged in infringement and not wish to challenge any of this in court. But, even so, that doesn't change the massively problematic nature of this move by ABS-CBN, and the denial of basic due process and the First Amendment to the operators of those sites. People have rights for a reason. We don't just stomp them out without due process just because one party has told a court that they're "bad actors."
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