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.
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