Slashdot Mirror
CPHack Appeal Denied
Hugh D. Hyatt writes: "Paraphrasing BNA Internet Law News: The appeal by several people posting mirrored versions of the Cyberpatrol hack has been rejected due to a lack of standing. The case had the potential to provide insight into free speech and copyright issues on the Internet with several high profile briefs filed as part of the case. So far there's been no media coverage but the case itself can be found here". Keep in mind that this appeal was filed by people not involved in the original case against Skala and Jansson, and this is a technicality judgment rather than an examination of the merits of the case. The court makes clear that the appellants were NOT affected by the original judgment and hence cannot be considered to be bound by it (or appeal it) - similar reasoning would also be applied in other cases such as the DeCSS suits, so this is a good look at what standing those mass-mailings of MPAA threat letters really have in law.
"The coin, however, has a flip side. A nonparty who has acted independently of the enjoined defendant will not be bound by the injunction, and, if she has had no opportunity to contest its validity, cannot be found in contempt without a separate adjudication. See id.; see also Alemite, 42 F.2d at 832 (declaring that a decree which purports to enjoin nonparties who are neither abettors nor legally identified with the defendant "is pro tanto brutum fulmen," and may safely be ignored). This tried and true dichotomy safeguards the rights of those who truly are strangers to an injunctive decree. It does not offend due process."My Latin is a little rusty, but "pro tanto brutum fulmen" seems to mean something like "the court's heavy thunderbolt only reaches to a limited extent".
Since it is plain beyond cavil that the sesquipedalian judges of this court opted to opine with grandiloquence, vel non, rather than plain English, I summarize for the rest of us in "abcedarian" form:
Look, you just can't appeal a case unless you are a party.
Really.
Well, almost always (as we always say in the law, "it depends").
Thus, if someone you know or share an interest with has been sued, you have two choices:
1) Make a motion to become a party (legally, to "intervene"). If you are not permitted to intervene, then you will be able to appeal. If you are permitted to intervene, you will become a party, with the upsides and downsides of being on the shooting end of the case. By intervening, however, you give up the right in many cases to later challenge the jurisdiction of the court.
2) Stand aside and hope it doesn't hit you. In so doing, you risk getting caught by an overbroad, even an unconstitutional injunction. The deal here is, that if a naughty injunction comes your way from a case in which you could have tried to intervene, but didn't, and you are "acting in concert" with a party, you are both: (1) bound to the injunction; and (2) have no recourse to appeal! (You would likely be granted privilege to file an amicus brief if the parties appeal, but there will be no appeal if they decide to settle or can't afford the appeal).
Of course, you could decide for yourself that you weren't acting in concert with the party, but if you are wrong, you face the business end of a contempt hearing. Nasty horns of a dilemma, to be sure. However, I believe the court stated the law correctly.
For those who want to know what is this "standing" thing:
Standing is the legal status of being able to address a court as to a particular case or controversy. Standing is necessary, but not sufficient, for the court to have jurisdiction. If you don't have standing, you can't play, because the court doesn't have jurisdiction to listen to you. To have standing to join a trial court case, you need to show a nexus to the issues. To have standing to join an appeal, you need to be a party in he decision appealed.