Lack of Due Process for Website Owners Raises Red Flag

 

The injunction requiring Google to delist sites and ordering registrars to transfer domains to another and changing DNS records without the owner's consent are two remedies that SOPA "expressly makes available," according to Balasubramani. The only difference was that if SOPA is enacted, rights holders wouldn't even need a court order in some cases.

While major Internet companies and consumer advocacy groups are opposed to SOPA, the bill has backers from Hollywood and the music industry.

In light of the opposition to SOPA, a bipartisan group of Senate and House members drafted an alternative approach to SOPA on Dec. 1. Under the draft proposal, copyright holders would petition the U.S. International Trade Commission to investigate the alleged counterfeiters and the commission would have the authority to issue cease-and-desist orders where necessary. The alternative proposal was signed by 10 lawmakers from both parties, including Sens. Maria Cantwell (D-Wash.) and Mark Warner (D-Va.), and Reps. Darrell Issa (R-Calif.), Jason Chaffetz (R-Utah), Anna Eshoo (D-Calif.) and Zoe Lofgren (D-Calif.).

Balasubramani called the fight against SOPA in Congress a "red herring" since brand-owners are getting similar remedies through the courts regardless of what the law states. Even if SOPA is defeated, "it may turn out to be a Pyrrhic victory," he said.

Balasubramani was concerned about the fact that Chanel filed a lawsuit against a group of defendants, who are independent of each other and don't seem to be part of a conspiracy. The court also allowed Chanel to keep adding more defendants "at its convenience." He also questioned the location of the lawsuit, noting that none of the domains were registered in Nevada. The fact that the judge's order was issued with "minimal (or no) notice to defendants" raised "red flags" regarding due process, he said.

The initial lawsuit listed a little more than 400 domain names, but Chanel has added on more domains since then, with 228 new sites added in November. Chanel conducted its own investigation to identify counterfeiters. For the 228 domains most recently seized by Chanel as part of the Nov. 14 order, a Chanel-hired investigator ordered from three of the 228 accused sites and passed the goods received to a Chanel official who determined they were fakes, according to court documents.

The other 225 sites were reviewed by a Chanel anti-counterfeiting specialist who browsed the Web looking for counterfeit sites. None of the groups operating the domains had the opportunity to defend themselves before the judge approved the request and the domains had already been seized, according to Balasubramani.