 woody7Premium
join:2000-10-13
Torrance, CA | hmmm....... whether the information was posted legally or illegally, is whether the judge had jurisdiction...and whether the "host" should have fought the order. In any case this was probably miss handled from the get go. While I believe posting information that was not legally obtained isn't good, neither is a judge assuming jurisdiction over the case, and rushing to judgment.
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BlooMe |
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 ·magicjack.com
| said by woody7:While I believe posting information that was not legally obtained isn't good, neither is a judge assuming jurisdiction over the case, and rushing to judgment. If I remember from the earlier article, the claim was copyright infringement. As a national signatory to the Berne Convention, why wouldn't the federal district court have jurisdiction over a claim that a foreign entity is being infringed under the terms of the convention?
I don't see any good way to paint this except that it brought about a lot of exposure (which may be good for the web site, opponents of offshore banking, etc.). To me it seems like the web site is fortunate they weren't charged with a felony (receiving stolen property). It would have been a lot better for the former employee to write a tell-all of what they saw.
Mark |
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| You're on the edge of what I think is a more important issue. What if a disgruntled employee fabricates information, posts it to an "anonymous" site like this and defames his former employer. What's the avenue of recourse? |
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 AlakarFacts do not cease to exist when ignored
join:2001-03-23
Milwaukee, WI | said by soccerguy:You're on the edge of what I think is a more important issue. What if a disgruntled employee fabricates information, posts it to an "anonymous" site like this and defames his former employer. What's the avenue of recourse? A legal avenue. The company would file a defamation lawsuit. File a motion to have the offending material removed, then file a discovery motion to have the person's IP and other identifiable info released.
The problem here, is that the judge's ruling was overly broad (taking down the whole site) clearly in violation of the 1st Amendment. It's also not clear that he had jurisdiction in the case.
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"Necessity is the plea for every infringement of human freedom; it is the arguments of tyrants; it is the creed of slaves." William Pitt the Younger |
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·magicjack.com
| said by Alakar:The problem here, is that the judge's ruling was overly broad (taking down the whole site) clearly in violation of the 1st Amendment. It's also not clear that he had jurisdiction in the case. I could agree with the idea that taking down the whole site is excessive. On the other hand, in the article a week or two ago "wikileaks" played coy when this could have been handled by them removing the materials without it even reaching court. If I were a judge, I wouldn't feel it necessary to quibble about exactly *which* documents when the defendant 1) appeared to act in bad faith, and 2) the site openly depicts the documents exactly as the plaintiff claims them to be (the plaintiff's property).
That doesn't mean that my broad decision as the judge would last forever. It would just mean that "wikileaks" would have to appeal the decision and make its own case which documents it will remove. In other words, it won't be me quibbling about this or that document, it will be "wikileaks" doing what it should have done when it had the opportunity before the whole thing reached court.
Mark |
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AlakarFacts do not cease to exist when ignored
join:2001-03-23
Milwaukee, WI | said by amigo_boy:said by Alakar:The problem here, is that the judge's ruling was overly broad (taking down the whole site) clearly in violation of the 1st Amendment. It's also not clear that he had jurisdiction in the case. I could agree with the idea that taking down the whole site is excessive. On the other hand, in the article a week or two ago "wikileaks" played coy when this could have been handled by them removing the materials without it even reaching court. If I were a judge, I wouldn't feel it necessary to quibble about exactly *which* documents when the defendant 1) appeared to act in bad faith, and 2) the site openly depicts the documents exactly as the plaintiff claims them to be (the plaintiff's property). That doesn't mean that my broad decision as the judge would last forever. It would just mean that "wikileaks" would have to appeal the decision and make its own case which documents it will remove. In other words, it won't be me quibbling about this or that document, it will be "wikileaks" doing what it should have done when it had the opportunity before the whole thing reached court. Mark Here is part of the correspondence between Wikileaks attorney and the attorneys retained by the bank. The lawyers wouldn't even identify their client or the documents they objected to. The full email exchange is at the link. Does this look like quibbling to you?
»88.80.13.160/wiki/Full_correspon···ius_Baer
Wikileaks is an international in scope. You have made vague references
to several different national jurisdictions, but extremely oddly,
refuse to name your client or any matter relevant to us, including
the names of any documents you object to. Under the circumstances
we feel you may not be acting in good faith.
Your odd refusal to provide even the most basic information makes
it appear that you are trying to set up some obscure provision in
DCMA law and have little interest in resolving what you claim to
be the issue at hand when given an opportunity to do so.
Infact you have provided us with no information for us to ascertain
that we have any involvement whatsoever with your concealed client.
As a organization for justice and the upholding of first amendment
rights we are somewhat of a cause celibre amongst lawyers and are
able to maintain a pool of high first rate councel to respond to
requests, each of which specializes in some juristiction or area of
law. Refusal to identify your client and the documents concerned
makes this assignment difficult.
Are you now claiming something in relation to the DCMA? In
California? Is this your primary claim? Please be clear.
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"Necessity is the plea for every infringement of human freedom; it is the arguments of tyrants; it is the creed of slaves." William Pitt the Younger |
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·magicjack.com
| said by Alakar:Here is part of the correspondence between Wikileaks attorney and the attorneys retained by the bank. Nowhere in that exchange does the person responding on behalf of Wikileaks identify herself as an attorney. Just because the email address says "legal@wikileaks.com" doesn't mean it's a lawyer responding to email.
The bank's attorney was under no obligation to waste his time with whoever was replying to email, with responses like "you're always welcome to respond on our website to allegations made.." The bank's attorney simply continued to demand contact with wikileak's attorney. Which was the smart thing to do considering how wikileaks was not just an innocent infringer, but using the materials for muckracking (and used the email exchange for the same purpose). Nothing the lawyer could have said would have been spun positively, right?
We have to remember that the materials were openly declared to be stolen and the property of the bank, used against the bank. That the attorney wouldn't consent to what was essentially an "interview" to be posted by wikileaks doesn't justify wikileaks.
I'm not defending offshore banks or money laundering. Just that it's astounding to do so and then complain when the inevitable occurs. It looks like people who can dish it out, but can't take it. They can use their free speech to essentially steal and slander, but when someone else uses theirs to protect their property it's an outrage?
Mark |
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 MrMoodyFree range slavePremium
join:2002-09-03
Smithfield, NC
1 edit | reply to Alakar
...
it appear that you are trying to set up some obscure provision in
DCMA law
...
Are you now claiming something in relation to the DCMA? In
California? Is this your primary claim? Please be clear.
First of all, when someone doesn't even know the abbreviation for DMCA, I wonder how much they know about the law, and secondly, people who ignore court orders in this country get thrown in jail, right or wrong. Judges have too much power.
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The public is a poor business manager. |
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| DMCA is an abbreviation. |
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 KrKHeavy Artillery For The Little GuyPremium
join:2000-01-17
Tulsa, OK
 ·AT&T DSL Service
| reply to soccerguy
said by soccerguy:What if a disgruntled employee fabricates information, posts it to an "anonymous" site like this and defames his former employer. What's the avenue of recourse? Court order forcing the site to reveal the user's information, IP, etc then an investigation. Once the defamer is unmasked, then a suit against them to recover damages. That's the normal recourse.
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"Regulatory capitalism is when companies invest in lawyers, lobbyists, and politicians, instead of plant, people, and customer service." - former FCC Chairman William Kennard (A real FCC Chairman, unlike the current Corporate Spokesperson in the job!) |
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 bentand IngaPremium
join:2004-10-04
Loveland, CO
 ·Comcast
| said by KrK:Court order forcing the site to reveal the user's information, IP, etc then an investigation. Once the defamer is unmasked, then a suit against them to recover damages. That's the normal recourse. You left out the very first part: an injunction against the site until the investigation can be completed. I don't see why everyone has their panties in a bunch about this.
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»www.lp.org/issues/family-budget.shtml
"That government is best which governs least" - Thoreau |
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KrKHeavy Artillery For The Little GuyPremium
join:2000-01-17
Tulsa, OK | An injunction may require that the offending material be temporarily removed until the matter is resolved in court.
NOT taking down the entire website because it was quicker and more expedient. |
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·magicjack.com
| said by KrK:An injunction may require that the offending material be temporarily removed until the matter is resolved in court. NOT taking down the entire website because it was quicker and more expedient. As I said earlier, it's far from innocent infringement or "fair use." It's depicted as the plaintiff's property, and used in a manner to harm the plaintiff.
And, when wikileak had the opportunity to resolve the matter out of court they played coy as if the attorney should engage them in their public forum.
If I were the judge I'd feel that the defendant would just engage in the same cat-and-mouse game that occurred when the plaintiff's lawyers approached. Take it all down and let the defendant figure out what they need to remove in order to win an appeal and get their site turned on again.
I see the judge's response being based on the defendant's contempt of the process.
Mark |
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| reply to KrK
Because a soon as someone tries this, the site will scream "we're offshore and not subject to your jurisdiction" and refuse to comply. |
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| reply to Alakar
I already understand that is "recourse" but the website will inevitably claim (with choruses of approval from many posters on this site) that they are offshore and not subject to U.S. jurisdiction and refuse to comply.
That's what I mean about having no recourse.
Look. Bank fraud is bank fraud. If allegations about what the Swiss bank did are actually true, then they deserve to be punished by any legal means available under the law. I'm not defending the bank.
What I'm concerned about is the lack of an enforceable remedy by sites that claim to be subject to no jurisdiction that allow, without any safeguards, anonymous posters to upload documents that may or may not be authentic, and defame others. All the site has to do is claim they are offshore and refuse to comply with any lawsuit or discovery motion, and if they have no U.S. assets, they can probably get away with it. |
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| reply to amigo_boy
said by amigo_boy:The bank's attorney simply continued to demand contact with wikileak's attorney. Without ever identifying the documents in question, the jurisdiction, or their client. Wikileaks couldn't know which attorney to even put them in contect with.
inevitable occurs. It looks like people who can dish it out, but can't take it. They can use their free speech to essentially steal and slander, but when someone else uses theirs to protect their property it's an outrage?
Pulling wikileaks DNS record is NOT "free speech". It's "censorship". |
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| reply to amigo_boy
said by amigo_boy:And, when wikileak had the opportunity to resolve the matter out of court they played coy as if the attorney should engage them in their public forum. If I were the judge I'd feel that the defendant would just engage in the same cat-and-mouse game that occurred when the plaintiff's lawyers approached. Take it all down and let the defendant figure out what they need to remove in order to win an appeal and get their site turned on again. I see the judge's response being based on the defendant's contempt of the process. Nice try. But the correspondence you're complaining about was not submitted to the court, and so could not have formed a basis for the court's decision. The defendant was never summonsed to appear in court, and was not represented at the hearing (that's what "ex parte" means). They could not have shown contempt for the process because they were excluded from the process. |
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| reply to soccerguy
said by soccerguy:Because a soon as someone tries this, the site will scream "we're offshore and not subject to your jurisdiction" and refuse to comply. Well, of course they will. Why should a US Federal Court in California have jurisdiction over a dispute between a Swiss bank with a Cayman Islands branch and an organization not located in the US? They have personal jurisdiction over Dynadot (the registrar), but where's the subject matter jurisdiction for the case?
Denying that a particular court has jurisdiction doesn't make you wrong. |
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Reviews:
·magicjack.com
| reply to russotto
said by russotto:Without ever identifying the documents in question, the jurisdiction, or their client. Wikileaks couldn't know which attorney to even put them in contect with. That part of the conversation looked contrived to me. The attorney was clearly US-based. Why wouldn't they put him in touch with an attorney in the US?
I don't blame the bank's attorney for keeping email communication with the site owner to a minimum. The nature of the site, and the adversarial use of the bank's materials wouldn't lead me to enter into any discussion with them (which would turn into an online interview, posted for all to see).
Mark |
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Reviews:
·magicjack.com
| reply to russotto
said by russotto:the correspondence you're complaining about was not submitted to the court, How do you know what was submitted to the court? I may have missed the link to that. I'd like to see it.
I'd have to believe that any time you appear in court demanding an immediate injunction against copyright infringement the first question would be what steps you'd taken to work with the infringer (i.e., why it's in court, why no opposing attorney, etc.).
The outcome doesn't surprise me based upon the email exchanges I read. If the bank's attorney perjured himself depicting the reasons it couldn't be resolved outside of court, nor opposing counsel notified, wikileaks would have a gigantic case for damages.
But, that trial would look just like the email exchange (cat-and-mouse game). "Well, yes we published materials openly claimed to be taken from the defendant against their knowledge. But, we had a *right* to know exactly which documents!"
C'mon. This is like High School.
Mark |
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