The much-maligned SOPA bill is facing a lot of heat as much of the tech industry sets its weight against it. But while the legislation is being discussed, its extreme solutions to criminal online sites are already being adopted. A judge in Nevada has ordered that 228 websites be seized, their domain names transferred, and their listings removed from search engines.
There are several serious problems with this ruling, and law blogger Venkat Balasubramani sums them up well. Essentially it is unclear how and why this Nevada judge purports to exert powers over hundreds of separate defendants internationally and order relief from parties only tangentially related to the case, such as search engines. The jurisdiction, evidence, and punitive actions all seem to be have had their scope exaggerated.
In brief, Chanel investigated 228 sites it suspected of counterfeiting goods, ordered from 3 of them, internally confirmed the counterfeit, and then extrapolated from that. The judge ordered all 228 domains to be seized.
Immediately the reasonable thing to wonder is what did the 228 sites have to say in their defense? Apparently nothing, since it wasn’t 228 separate suits. Yet for 228 different sites, presumably with a number of different owners, hosts, registrars, countries of origin, and so on, it seems there might be some individual defenses, pleas for time or clemency, or what have you. Torrent lawsuits have failed because it was ruled that a suit could not be leveled against so many individuals as a generalized entity when clearly the actions of those individuals were not acting in concert or even aware of each other. Apparently this judge feels otherwise.
The peremptory and broad nature of the actions required by the ruling are troubling as well. Can a Nevada judge really order Google and Facebook to delist these sites? Can he compel a plethora of registrars to give up control of the domains? It’s a bit like ordering a criminal to be imprisoned on the Moon.
True, it would be time-consuming and troublesome for Chanel to go around suing every fake goods site. But surely there is a way more in line with existing laws, US and international, than fleecing a naive judge into ordering instant and out-of-place punishments with global implications. Although it’s just one of many similar seizures, as <a href="http://arstechnica.com/tech-policy/news/2011/11/us-judge-orders-hundreds-of-sites-de-indexed-from-google-twitter-bing-facebook.ars"Ars Technica points out.
Challenges to this ruling will likely come from the companies involved at the fringe, not at the questionably legal operations selling fake handbags, which can easily set up again at a different domain and count up this seizure as the cost of doing business. But Google and the registars are likely to resent being treated as Chanel’s playthings. Google has already stated its intention to not comply with SOPA requirements. Will they comply with requirements that are in all but name SOPA requirements? I sincerely doubt they’ll allow a precedent to be set by such a ridiculous case.
As Balasubramani points out, plaintiffs don’t need SOPA to ask for SOPA-like remedies, and many judges, sad to say, are ignorant enough to grant them. But without the visibility of SOPA, individual cases will have to be policed for unreasonable actions like this one. Luckily the parties that must take action for these remedies to have any effect are aware of the threat, whether it’s federal or otherwise.