[Politech] Barney lawyer recommends court orders to hack copyright infringers [ip]

From: Declan McCullagh (declan@private)
Date: Mon Oct 17 2005 - 22:34:29 PDT

Matthew Carlin is a longtime lawyer for Barney (yes, the plush purple 
tyrannosaur) who has made appearances on Politech from time to time:

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.




Hacker With A White Hat
By Ronald D. Coleman and Matthew W. Carlin


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.


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.

Politech mailing list
Archived at http://www.politechbot.com/
Moderated by Declan McCullagh (http://www.mccullagh.org/)

This archive was generated by hypermail 2.1.3 : Mon Oct 17 2005 - 23:01:39 PDT