Best of 2005: Overlawyered Knocks Off Our White Hats
Originally posted 2015-01-16 12:15:34. Republished by Blog Post Promoter
Originally published on October 24, 2005.
One of those bells is Overlawyerer Walter Olson, who attributes “fame” to this blog and who queried whether our heretofore ignored four-and-a-half-year-old article constitutes a declaration of “open season to hack trademark infringers”. Walter, whom I met when he came to speak to the Federalist Society in New Jersey a few years back, links to two other sites that discuss this article. One is Declan McCullough’s site; he opens it up to lively discussion on his Politech mailing list. I’ve contributed a response. The commentors raise some good points, if not always with good manners.The other one is Jonathan B. Wilson. He notes, in opposing our suggestion:
No one would suggest, for example, that the successful plaintiff who obtains injunctive relieve against his neighbor’s too-loud stereo could obtain a further court order that authorizes the plaintiff to destroy the stereo or steal it.
Actually, you wouldn’t have to do that. If you had such an injunction, and it were ignored, the Court could send federal marshalls to the house to enforce the order. Regrettably (to IP plaintiffs), this is not possible on the Internet. He continues:
Second, and perhaps more importantly, is the fact that the Congress has already developed a reasoned balancing of the interests of intellectual property rights-holders and website operators through the Digiltal Millenium Copyright Act, the Communications Decency Act and some related statutes.
My response to that is that (a) the DMCA does not cover trademarks, and (b) you can write laws all day long, but if court orders issued pursuant to those laws are not enforced, what does it get you? More:
Coleman and Carlin’s suggestions would abandon this balanced legal approach in favor of cyber-vigilantism, in which a party who obtained a default judgment and an injunction would be empowered to fire electronic rounds through the web at his elusive quarry.
In fact, nothing a court orders is vigilantism. We never proposed that anyone be “empowered” to do anything by virtue of an injunction unless that injunction itself explicitly, and pursuant to the legal standards set forth in the cases and the Federal Rules of Civil Procedure, grants that power. And once it does so, there is no vigilantism — you now have the permission of the law to do.
I have a better idea, though. Let’s empower the U.S. Marshalls Service to enforce federal court orders instead of leaving it to private parties. No need for posses; we’ll just send in the marshalls. Please just don’t hold it against me if I decline to hold my breath waiting for that to happen! Happy trails….