NEW YORK – As reported by TorrentFreak last week, District Court Judge Katherine Polk Failla of the Southern District of New York has issued three sweeping injunctions that require all Internet Service Providers (ISPs) in the United States to block access to the websites at issue in the case – and any “newly-detected websites” operated by the defendants in the future.
The injunctions come in the cases United King Film Distribution Ltd. v. Israel.tv, United King Film Distribution Ltd. v. Israeli-TV.com and United King Film Distribution Ltd. v. SDAROT.com, each of which was filed last year. Each complaint names 1-10 John Doe defendants in addition to the websites.
In each complaint, the plaintiffs sought the statutory maximum of $150,000 per infringement and an injunction barring the defendants from infringing on the plaintiffs’ works in the future. The defendants never responded to any of the three complaints, which set the table for an easy win for United King.
What makes the cases newsworthy isn’t United King’s victory, of course; there’s no real suspense to be had in a case where the defendants never show up to rebut the claims of the plaintiffs, after all. The news here is the injunctions themselves, which appear to be unprecedented in nature and scope.
In addition to barring the defendants from future infringement on the works of United King, the injunctions order a massive number of third-party entities, including ISPs, hosting providers, registrars, VPN providers, affiliate programs, web designers, banks, merchant account providers and essentially any other manner of service provider you can imagine performing a task for a website, to never again do business with the defendants.
Here’s an example of the language in the injunctions, this one pertaining to registrars and registries in the Israel.tv injunction: “(I)n accordance with this Court’s inherent equitable powers and its power to coerce compliance with its lawful orders, and due to Defendants’ on-going operation of their counterfeiting activities, in the event Plaintiffs identifies any Newly-Detected Website registered or operated by any Defendant and used in conjunction with the streaming any of Plaintiffs’ Works, including such Websites utilizing domain names containing any of Plaintiffs’ service mark or marks confusingly similar thereto, Plaintiffs shall have the ongoing authority to serve this Order on the domain name registries and/or the individual registrars holding and/or listing one or more of such the domain names associated with the Newly-Detected Websites.”
Even in an uncontested action, the scope of the injunctive relief here is breathtaking. The relief is so expansive and so unusual, in fact, that in a case where a defendant has bothered to show up for court, injunctions like these might not survive scrutiny from a higher court.
“The federal courts are free to craft an appropriate injunction to remedy copyright violations,” noted adult industry attorney Larry Walters told YNOT. “However, the injunctions in these cases are dramatically broad and apply to hosts and other service providers who may not have had any contact with the infringers.”
Walters observed that in copyright cases, courts typically will “grant relief with respect to past or current service providers, when requested,” but said these orders “break new ground by applying to virtually all ISP’s who might have contact with the defendants in the future and blocking publication of their content.”
Walters added that the “scope of the orders is likely explained by the fact that they are issued against defaulting parties who chose not to participate in the proceedings.”
“If they had appeared, they may have pushed back against the breadth of the relief granted, and potentially raised some constitutional concerns,” Walters said. “However, the defendants have essentially waived these issues by defaulting and allowing the court to rule without their input.”
For rightsholders seeking to replicate United King’s success in obtaining such sweeping injunctions, it might be a good idea to temper their enthusiasm and consider the context of these orders. Yes, a court has ruled that every American ISP under the sun must block websites associated with these defendants, but that doesn’t mean other courts necessarily will follow suit in the future, particularly if the defendants involved in those future cases retain competent counsel, respond to the complaint and show up in court for hearings.
“Other copyright holders might use these orders as persuasive authority to obtain similar relief in the future,” Walters said. “If those future cases are contested, the rulings might be more narrowly tailored, or challenged on appeal as an abuse of discretion or a violation of the First Amendment.”
