Matthew Carlin is a longtime lawyer for Barney (yes, the plush purple tyrannosaur) who has made appearances on Politech from time to time: http://www.politechbot.com/p-02240.html Carlin apparently obtained a court order against a counterfeiter who sold fake Rolex and Cartier watches in violation of federal law. But to hear Carlin describe it in his article excerpted below, the court order wasn't enough because the counterfeiter hopped between domain names and Internet providers weren't rushing to pull the plug. The solution, according to this article, is for copyright lawyers to be deputized by courts to hack into such sites and take them offline. Court permission would be necessary because otherwise it would violate federal and likely state laws as well. (Presumably the law firms would contract this out.) It's not clear if they're thinking basic intrusion-and-"rm -rf /" or a denial of service attack as well. Read on for Carlin's argument about why copyright hacking would be a fine idea. -Declan --- http://www.gibney.com/LegalNews/Record/hacker.cfm Hacker With A White Hat By Ronald D. Coleman and Matthew W. Carlin [...snip...] Now that it is clear what you cannot do, the obvious question is what can you do, as a legal matter? As a practical matter, you could add permission to find and hack the web site as part of the laundry list of relief submitted to the Court in a proposed Order and Permanent Injunction. Because your proposed order is likely to be unopposed, you may just get that permission without a fight. But depending on the posture, the judge, the timing and the facts, you have to be prepared to argue for this actually rather extraordinary relief on the merits. What is the legal basis for an application to obtain court permission to have a third party shut down the infringing web site? It is axiomatic that an equity court has the authority to order the doing of something that, absent its order, would otherwise be illegal. The best example is the ancient remedy of replevin. Here, the authority on which to base a request the relief you are seeking against Ersatz appears to come from the Federal Rule of Civil Procedure 70, which grants federal courts the power to enforce judgements via equity. [...snip...] Finally, you may want to find a better term than "hacking." The phrases "technological cyber-enforcement in aid of litigant's rights" or "court sanctioned interference with the infringing instrumentality" does not have quite the ring of "hacking," but then again this is a serious endeavor. Whatever you call it, you will, as usual, be best off letting one of the judge's own robed colleagues have the last word. In Chuckleberry Publishing, Judge Scheindlin of the Southern District of New York stated, "Cyberspace is not a 'safe haven' from which [an infringer] may flout [a] court's injunction." Your injunction application will test those brave words. Good luck. [...snip...] _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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