On August 14, a federal district court in Oregon issued an ex parte temporary restraining order (TRO) in a civil copyright infringement case, ABS-CBN v. Ashby. The defendants in the case are accused of operating several “pirate websites” that infringe the plaintiffs’ copyrights in broadcast television programs. In addition to ordering the defendants to stop engaging in infringing conduct, the court ordered unspecified “Internet search engines, Web hosts, domain-name registrars, and domain name registries or their administrators [to] cease facilitating access to any or all domain names and websites through which Defendants engage in the [infringement] of Plaintiffs’ copyrighted works.” The court ordered the domain name registrars that had originally registered the defendants’ domain names to transfer the registrations for the pendency of the litigation to a new registrar chosen by the plaintiffs. It then ordered the new, as-yet-unidentified registrar to divert traffic from the defendants’ sites to a location displaying legal documents from the case. None of the online intermediaries targeted by the order is a named party in the case, and none was represented in court before the TRO issued.
A little over a week before the Oregon court issued its TRO, a federal district court in California issued a TRO in another “pirate website” case involving sites streaming and distributing pre-release copies of “The Expendables 3.” The California court’s order to stop providing services to the defendants was directed broadly to “persons and entities providing any services to or in connection with the domain names <limetorrents.com>, <billionuploads.com>, <hulkfile.eu>, <played.to>, <swankshare.com> and/or <dotsemper.com> or the websites to which any of those domain names resolve.” In addition to domain name registrars and hosting services, the California court’s order swept in “[a]ll banks, savings and loan associations, payment processors or other financial institutions, payment providers, third party processors and advertising service providers of Defendants.” Again, none of the online intermediaries targeted in the order is a named party in the case and none was represented in court before the TRO issued.
The reach of these orders is breathtaking, particularly in light of the non-party status of the targeted intermediaries. Generally speaking, a court has no authority to issue an order to a non-party over which or whom it has not acquired personal jurisdiction. This default rule is protective of due process and prevents non-parties from having their rights adjudicated to their prejudice when they’re not present to be heard. Under Rule 65 of the Federal Rules of Civil Procedure, a “[court] 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…(A) or (B).” There is, simply stated, a requirement of privity or close relationship between the actual parties to the case and any non-parties over which or whom the court seeks to extend its injunctive power.
The requisite Rule 65 relationship is far from self-evidently present in either of the cases cited above with respect to any of the targeted intermediaries. The Oregon court did not even characterize the targeted third-party intermediaries as being “in active concert or participation” with the defendants. It simply ordered them to act upon notice of the injunction. The California court expressly characterized the domain name and hosting intermediaries as being included among the persons or entities “in active concert or participation with [the defendants].” It did not, however, so characterize the range of third-party intermediaries providing payment-related services for the defendants’ websites. Just as the Oregon court did with all of the intermediaries affected by its order, the California court simply ordered the payment intermediaries to act upon receiving notice of the injunction.
Under federal case law, a non-party is said to be “in active concert or participation” if that non-party is “legally identified with [the] defendant, or, at least, deemed to have aided and abetted [the] defendant in the enjoined conduct.” That means “acting in collusion with, or as the alter ego of, an enjoined party.” It strikes me as a real stretch to argue that the search engines, web hosts, domain name registrars, and payment processors targeted in these cases have the kind of close relationship with the defendants that is necessary to justify extending an injunction against the defendants to them. Judges in these cases should really be taking a more searching and disciplined approach to the Rule 65 standard. Due process is not well served when courts issue sweeping ex parte orders that purport to bind unknown (and potentially large) numbers of strangers to the litigation over which they’re presiding.
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