On Feb 19, 2008 8:44 AM, Bob Miller <[EMAIL PROTECTED]> wrote:
> Wikileaks have a lawyer, so they could pursue this. Would they have > to appeal to reverse the court order to lock up the domain name? > The way the judge handled it created a bit of a quagmire in terms of answering that question definitively without a bunch of research. But I suspect the answer would be that Wikileaks would have to begin by trying to persuade the judge to dissolve the injunction himself and to order Dynadot to reinstate the domain name registration. The procedural snarl arises because the injunction did not order Wikileaks to do something or refrain from doing something. Had the order required Wikileaks itself to take or refrain from action, it would be immediately appealable as soon as Wikileaks made its appearance in the case, although Wikileaks would have the option of waiting to appeal until the end of the district court phase of the case. If I can break loose some time in the next couple of days, I'll check the court's public case file and see if there's anything that sheds further light. At least the complaint should be public, although I suspect that some of the documents have been sealed on grounds that they reveal trade secrets and confidential business information. Of course, the whole ordeal is great publicity for Wikileaks. I'm > sure I'm not the only person who only heard of them because of the > lawsuit. > The publicity angle itself raises some issues. Wikileaks has been mirrored for some time before all this and has a demonstrated ability to publicize its work. So the injunction was as a practical matter ineffective from the git-go in stopping the dissemination of the offending information. I'd guess that the lawsuit was a symbolic gesture, intended to enable the bank to plausibly tell customers and others that it got a federal court injunction against the dissemination because the information was false, libelous, etc. The naming of the unknown John Doe defendants as defendants and the order's requirement that Dynadot preserve all of its records about people involved are, I suspect, intended to intimidate Wikileaks folk from fighting the case. It's in effect an announcement that they intend to explore in discovery who the people are behind Wikileaks if Wikileaks attempts to defend the case. And of course the Wikileaks folk most likely would not want that to happen. So the case kind of smells more like a drive-by shooting than the commencement of a serious lawsuit. But it has the potential to backfire. California has one of the strongest SLAPP laws in the U.S. and the Ninth U.S. Circuit Court of Appeals allows the law to be used in federal court if there is at least one state law claim raised in the complaint. SLAPP stands for "Strategic Lawsuit Against Public Participation." Basically, SLAPP laws are intended to allow defendants in cases brought to chill free speech and public debate to SLAPP-back. The California SLAPP law if invoked stops the main case until it's determined whether the case was intended to have the prohibited effect. If it was, the plaintiff's case gets dismissed and the defendant gets attorneys fees and any damages incurred because of the lawsuit and the plaintiff's lawyers can be held liable as well. There's a summary description of the California SLAPP law on Wikipedia. < http://en.wikipedia.org/wiki/SLAPP#California>. The Wikileaks press release said they have 6 pro bono lawyers working on the case in the San Francisco area. I'll hazard a guess that at least some of them are from the California Anti-SLAPP Project in Berkeley, which also gets lots of legal research help from law students at U.C.-Berkeley. <http://www.casp.net/index.html>. So this might just backfire on the bank and its lawyers, with them facing far more legal muscle than they anticipated. It could turn into an interesting case to watch. Best regards, Marbux
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