On Feb 18, 2008 10:23 PM, larry price <[EMAIL PROTECTED]> wrote: > On Feb 18, 2008 8:25 PM, marbux <[EMAIL PROTECTED]> wrote: > > So pertinent questions might be: > > > > 1. Who arranged the UAE "investment" and loan? > > I'm sure it's entirely coincidental that Microsoft is pouring a bunch > of money into the UAE > > http://www.khaleejtimes.com/DisplayArticleNew.asp?col=§ion=theuae&xfile=data/theuae/2008/January/theuae_January854.xml >
Absolutely! :-) > > Wow, I'm glad that there are people like you and the Groklaw crew out > there, I do not have the tolerance required to sift through that > particular pile of long and tedious arguments of insidious intent. > It's a different kind of nerdiness, I'll grant you, that often leaves me wondering why I don't get a life instead. > > Speaking of network legal issues what do you all think of the > wikileaks.org case? > I'm not a lawyer, but some of the stories I read made me very dubious of the judge's injunction, defendants in civil cases are supposed to have a right to respond; and notification by email is not equivalent to service of notice. I had a bit of trouble tracking down a wikileaks.org mirror that worked for a few minutes, actually two, long enough to get a copy of the order and the Wikileaks.org press announcement about it. What is supposed to be the court order is here if you can get through. < http://wikileaks.in/w/images/Dynadot-injunction.pdf>. The press release I found is on another server here, < https://wikileaks.cx/wiki/Wikileaks.org_under_injunction> It's hard to come to an opinion when the facts are so sketchy. But in checking the terms of service offered by the domain name registrar involved, it looks like their lawyer wrote terms that allow them to cancel a domain name registration at any time with or without reason. See section 7 at < http://www.dynadot.com/registration_agreement.html>. Offhand, I'd say those terms are likely subject to challenge as an unconscionable adhesion contract, but it would require more legal research than I've got time for at the moment to nail such issues down. I've never researched unconscionability in the context of domain name registrars but am aware that there's lots of law out there specific to domain name registration, so I'm unwilling to take a hard position on that legal issue. So let's just say for now that there's a smell there that the wikileaks.orglawyers will likely be tracking down if the decision is to fight the case. Without boring you with too much discussion of the rules of procedure that give added meaning to a lot of the words and phrases in the court order, what has apparently happened is that Wikileaks.org exposed some serious wrongdoing by a bank in the Cayman Islands, the bank filed a lawsuit in California's federal Northern District Court naming the Dynadot domain name registrar, Wikileaks, Wikileaks.org and 1-10 unknown John Does as defendants. Dynadot is headquartered in California so it's an appropriate jurisdiction for the case to be filed in, unless it turns out that one of the John Does is from California. My sense is that wikileaks.org may not exist as a formal legal entity, so there may be problems with getting it served with a summons and complaint. I suspect that's the reason the John Doe defendants were named, so that real people could be named as defendants after they are identified. Dynadot promptly cut a deal with the bank agreeing to cancel the domain name registration for Wikileak.org and to nail the door shut on that domain name and to preserve all records Dynadot had about the domain name and the folks involved with it. The deal was conditioned on the court ordering Dynadot to do these things and the bank dismissing Dynadot as a defendant "with prejudice." The court did just that and ordered Dynadot to file a voluntary dismissal with prejudice, entering the order as a permanent injunction while retaining jurisdiction to enforce the injunction. "With prejudice" means in effect that it will be very difficult for the Bank to resurrect a case against Dynadot. If Dynadot violates the injunction, it would be handled as a contempt of court rather than as a new case. But it should not mean that Wikileaks.org or one or more of the John Does could not name Dynadot as a third party defendant. My guess would be that the deal talks a lot about Wikileaks.org infringement of the bank's copyrighted documents, theft of trade secrets and confidential business information, and whatever other excuses Dynadot's lawyer felt like throwing in that might help Dynadot if Wikileaks.org counter-sues Dynadot. *(See, a federal judge ordered us to do it; we had no choice. And look how bad you were. Even if the judge hadn't ordered us to do it, we had a right and civic responsibility to cancel your domain name registration anyway. You violated our terms of service. You're bad, bad, bad. Yadda, yadda, yadda.) * I have issues with the way the judge handled it. Oversimplifying the rules, folks aren't supposed to be able to get injunctions that determine other people's rights without basically what you said, They have to be named as parties, served with a summons and complaint, and given an opportunity to oppose the injunction. >From a procedural standpoint, it looks to me like the only thing the judge could have done legally was to issue a temporary restraining order requiring what he required instead in the injunction and then renewing the order every five days until wikileaks.org was served with a complaint and summons or it proved infeasible to bring them in. It would be tenuous at best for the Bank to argue otherwise because it named wikilinks.org as a defendant. The key rule is Federal Rule of Civil Procedure 19, <http://www.law.cornell.edu/rules/frcp/Rule19.htm>, which provides in part: A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction *must be joined as a party if*: ... (B) that person claims an interest relating to the subject of the action and *is so situated that disposing of the action in the person's absence may: * *(i) as a practical matter impair or impede the person's ability to protect the interest; * ... If a person has not been joined as required, the court *must order* that the person be made a party. ... If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. ... [factors to be considered omitted]. ... The fact that the bank named wikileaks.org as a defendant is a real barrier here, because you're not supposed to name defendants who can't feasibly be joined as parties. Instead, the complaint has to state who they are and why they cannot feasibly be joined in the claims for relief section, again from Rule 19: When asserting a claim for relief, a party must state: (1) the name, if known, of any person who is required to be joined if feasible but is not joined; and (2) the reasons for not joining that person. Now granted, a judge might permissibly ignore that last procedural nicety if there's a stack of affidavits in the court file swearing that others have repeatedly tried to serve wikileaks.org with a summons and a complaint but the entity doesn't exist as a legal entity and the people involved can't be identified, etc. But why then is the court ordering that Dynadot preserve all of its records as to the people involved? That makes it sound as though the bank and the judge think it may be feasible to join people as defendants. And all of the above blinks past the absolutely incandescent First Amendment issues. If the New York Times can't be restrained from publishing the Pentagon Papers (U.S. Supreme Court decision), it's hard to imagine how an injunction could be issued that has the effect of a prior restraint on publication of bank records. The scope of the restraint imposed is enormous in this case. The court granted an order that, analogized to the Pentagon Papers situation, ordered the New York Times office landlord to lock everyone out of the building and not allow them to publish anything at all, whether it has to do with the Pentagon Papers or, e.g., terrorists crashing airliners into New York skyscrapers, classified advertising, the price of tea in China, etc. Under First Amendment jurisprudence, prior restraints aimed at curtailing speech are pretty much flatly prohibited. But even where the restraint imposed is only incidental to a legitimate government objective, what's required is a remedy that is no more restrictive of speech than is necessary. So, e.g., it's ok to require that picketing union members have to do their picketing in a specified area to keep the sidewalks clear but you step way over the line if you order them to stop picketing. The basic concept here is that the right of free speech is so fundamental to our form of government that the only acceptable way of restricting speech is minimistically or remedial, e.g., a jail sentence for shouting "Fire" in a crowded theater when there was no fire, money damages for libel, etc. Now there are exceptions, and maybe one is involved here. E.g., a judge can permissibly order someone to cease infringing on a copyright by continued publication of the infringed content. On the other hand, the fair use doctrine is pretty flexible and I can see an argument that fair use should allow publication of documents if they show wrongdoing. But I still see no way you can get to ordering that someone not be allowed to publish anything at all, whether it is infringing or not. So without really digging into the case, my sense is that whether you regard the situation as a direct restraint of speech or a restraint incidental to a legitimate objective, the judge's injunction smells like overkill. But I'll caution that I really don't know nearly enough about the case to bad mouth the judge. There may have been some issue presented not discussed in the order that compelled the decision. On a personal level, I have issues with a domain name registrar just rolling over like Dynadot apparently did, particularly when it's a human rights group they rolled on at the request of what sounds like a fairly nasty group of folk in the Cayman Islands. Dynadot brags on their web site about how financially sound they are. It sounds like its customers have been good to Dynadot so Dynadot should be good to its customers, all the more so when it's apparently thugs out to silence a human rights group that blew the whistle on them. Sorry for the length, but it's an interesting case. Best regards, Marbux
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