Who Needs SOPA When Courts Will Pretend SOPA Already Exists?
from the seems-unfortunate dept
Back in November, we wrote about one of a series of cases we had seen where trademark holders were going to court with a list of domain names that they insisted were selling counterfeit goods and getting the courts to issue injunctions that appeared to be quite similar to what SOPA would have allowed had it passed. That is, basically upon request, a trademark holder was able to get domain registrars to kill domain names, while forcing search engines and social networks to put in place blockades barring such sites from being listed. It appears that more trademark holders are taking notice. Jeff Roberts has the story of (regular IP extremist) Louis Vuitton trying the same thing.
Basically, it lists out a bunch of websites that may or may not be involved in the sale of infringing works. Most, if not all of them, are foreign run. However, it is seeking a full injunction against those sites, not just to get them to stop selling any counterfeit goods, but to get the domains themselves turned off, and to block search engines from being able to find them:
Entry of an order requiring the Subject Domain Names, and any other
domain names being used by Defendants to engage in the business of marketing, offering to sell
and/or selling goods bearing counterfeits and infringements of the Louis Vuitton Marks to be
disabled and/or immediately transferred by Defendants, their Registrars and/or the Registries to
Louis Vuitton’s control so they may no longer be used for illegal purposes.
Entry of an Order that, upon Louis Vuitton’s request, the top level domain
(TLD) Registries for the Subject Domain Names and their administrators place the Subject
Domain Names on Registry Hold status, thus removing them from the TLD zone files
maintained by the Registries which link the Subject Domain Names to the IP addresses where
the associated websites are hosted.
Entry of an Order that, upon Louis Vuitton’s request, those in privity with
Defendants and those with notice of the injunction, including any Internet search engines, Web
hosts, domain-name registrars and domain-name registries or their administrators that are
provided with notice of the injunction, cease facilitating access to any or all domain names and
websites through which Defendants engage in the sale of counterfeit and infringing goods using
the Louis Vuitton Marks.
Entry of an order that, upon Louis Vuitton’s request, the Internet
Corporation for Assigned Names and Numbers (“ICANN”) shall take all actions necessary to
ensure that the Registrars and the top level domain Registries or their administrators responsible
for the Subject Domain Names transfer, change the Registrar of Record, and/or disable the
Subject Domain Names as directed by the Court.
As we noted back in the fall, there are all sorts of problems with these kinds of rulings (assuming that the South Florida court in this case follows the lead of previous courts). First of all, it’s not clear under what authority the courts can issue such broad injunctions. Second, there are serious jurisdictional questions. But the biggest issue of all is that the court seems to be requiring non-parties to the litigation to take pretty drastic action: requiring search engines and domain registrars to effectively kill sites with little in the way of review or recourse. Now, it’s likely that most — or perhaps all — of the sites in question are selling counterfeit goods. But how long do you think it will be until others use these cases as precedent for taking down all sorts of sites — even those that are perfectly legitimate?