Abusive Site-Blocking Tactics By American Bridal and Prom Industry Association Collapse Under Scrutiny
In early 2012, after a massive public outcry, Congress abandoned the proposed SOPA bill that would have authorized broad, ex parte site-blocking orders. One of SOPA’s most worrying features was that it would have created new, easy-to-obtain court orders against third parties, such as domain name registrars, ad networks, payment providers, and search engines. Unfortunately, some rightsholders have been trying to convince courts that existing law already allows them to get the same sort of site-blocking orders. They are wrong.
The most recent site-blocking case was filed by an industry group called the American Bridal and Prom Industry Association together with some of its member companies (collectively “American Bridal”). They filed a complaint in the Northern District of Illinois naming a whopping 3,343 websites as defendants. American Bridal claimed the defendants were engaged in trademark and copyright infringement and asked the court for a temporary restraining order (TRO). The defendants did not get a chance to appear and defend themselves, since the hearing was ex parte. In addition to asking the court to enjoin the alleged infringement, American Bridal asked for an order that would require third parties, like domain name registrars and payment processors, to take down websites and freeze funds.
The court granted the TRO. After the order was entered, many defendants began to contact the court to claim they’d been improperly caught up in American Bridal’s dragnet. American Bridal had alleged that “all” of the defendants were Chinese counterfeiters who hid their identity by submitting fake Whois information for their domain names. This did not turn out to be true. For example, one defendant was an Irish business that had provided accurate contact details when it registered its domain.
Things got interesting at the next hearing. The judge said that “red flags are all over this file” and expressed concern that American Bridal had not done enough investigation before filing suit. Unfortunately, much of the damage had been done. Because the TRO had required registrars to turn control of domain names over to American Bridal, every defendant’s business had been either destroyed or massively disrupted.
American Bridal’s tactics raised some very serious problems:
- Jurisdiction: American Bridal argued that anyone who offered goods for sale online from anywhere in the world could be brought into court in the Northern District of Illinois. But it is not the case that every Internet business can be sued in any American court. To be sued in Illinois, for example, a company must actually target that market in some way.
- Joinder: American Bridal sued over 3,000 defendants in the same lawsuit without providing any evidence that the defendants were related. Though it may seem like a technical issue, misjoinder raises important fairness considerations. An innocent party caught up in a lawsuit with thousands of other defendants will have a very hard time presenting its individual defenses.
- Due Process: American Bridal asked for an injunction that would bind hundreds of Internet intermediaries like domain name registrars, payment processors, and others who had no opportunity to participate and challenge the order. In addition, the proposed injunction treated these neutral service providers as if they were “aiders and abettors” of the alleged infringement. Courts cannot enjoin non-parties unless they work in “active concert” with the defendants.
We prepared an amicus brief addressing some of these issues. We planned to submit the brief to the court but American Bridal dismissed its claims before we got a chance. Faced with the judge’s skepticism (particularly regarding whether the court had jurisdiction), American Bridal slunk away rather than receive a written order dismissing its case.
American Bridal’s tactics show how important it is for courts to carefully scrutinize requests for ex parte site-blocking orders. Without briefing on both sides, courts can miss important issues. For example, the Seventh Circuit’s decision in Blockowicz v. Williams (which is binding precedent in the Northern District of Illinois) holds that courts cannot issue an injunction against neutral service providers who aren’t parties to the case. American Bridal never told the court about the Blockowicz decision, and the court issued its TRO before any defendant had a chance to mention it.
We hope that this post, and our brief, will be helpful if any companies get caught up in a similar dragnet. We will be on the lookout for other rightsholders seeking improper, SOPA-like orders.