Ethiopian Review

A U.S. District Court judge has ruled against another BitTorrent index site, and this time the case wasn’t clouded by the defendant’s misconduct.
Instead, the site, isoHunt, appears to be a victim of its own
bad facts (or incredibly ineffective lawyering). But the court
narrowed its ruling against isoHunt
in ways that could limit its application to other torrent search sites.
In fact, the ruling ducks the fundamental question of whether such
sites are by their nature infringing. (Hat tips to Ars Technica and Michael Geist for the links to the ruling.)

The judge in the case was none other than Stephen V. Wilson, who went out on a legal limb in 2003 to declare Grokster and Morpheus legal before the Supreme Court discovered a previously overlooked form of secondary liability
for copyright infringement ("inducing" people to infringe). Both
companies are now in the dustbin of history, and that appears to be
isoHunt’s destination too.

That’s not to say Hollywood’s victory over isoHunt will reduce
online piracy. Instead, it’s yet another blow to companies and
investors that try to monetize the public’s insatiable appetite for
illegal downloads. And that’s an important part of the Motion Picture Assn. of America’s strategy: stopping commercial capital from flowing into businesses that
encourage bootlegging.

Like TorrentSpy and the Pirate Bay, isoHunt argued that it was no
different from Google: It provided a generic search tool, one that
was indifferent to the nature of the files people were searching for.
Under the Supreme Court’s Grokster decision, truly neutral search
technologies, business models and companies should be immune to
infringement claims because they don’t promote piracy. But Wilson ruled
that the MPAA had presented credible evidence that isoHunt and its
owner, Gary Fung, had encouraged illegal downloads, and that the
defense had presented little or no evidence in rebuttal. "Generally,
defendants rest their case on legal arguments and meritless evidentiary
objections, and offer little of their own evidence that directly
addressed Plaintiffs’ factual assertions," Wilson wrote. In that light,
he declared, there was no reason to go to trial. 

Significantly, Wilson found isoHunt to be an evolved version of
Grokster, not Google. He also concluded that Fung encouraged users,
directly or indirectly, to upload and download copyrighted content. It
wasn’t a close call: "[T]he Court determines that evidence of
Defendants’ intent to induce infringement is overwhelming and beyond
reasonable dispute." In addition to the overt messages encouraging
infringement, Wilson wrote, the site’s search capabilities were
optimized for finding material that was obviously bootlegged. That’s an
important difference between isoHunt and Google, which also enables
users to find torrent files. 

Equally significant was Wilson’s decision not to address the MPAA’s
argument that isoHunt was liable because it either (a) knew about
specific infringing files that were available and refused to take
simple steps to prevent them from being copied, or (b) profited from
infringements that it had the authority to limit. The MPAA’s arguments
against isoHunt on those issues could be applied to any torrent site,
so a ruling on them by Wilson could lay the foundation for an important
precedent. Similarly, Wilson found that isoHunt did not qualify for the
infringement defense that the Digital Millennium Copyright Act created
for search engines, but based that decision largely on the inducements
to infringe and Fung’s activities as a downloader. Still, Wilson
suggested that any torrent site that offers a list of most popular
downloads — as these sites routinely do — would have a tough time
qualifying for the DMCA safe harbor because the list would alert them
to users’ infringements.

– Jon Healey

Healey writes editorials for The Times’ Opinion Manufacturing Division. Follow him on Twitter: @jcahealey

Related Posts

1. isoHunt Reveals World’s First Social BitTorrent File Sharing Website
2. isoHunt Reveals World’s First Social BitTorrent File Sharing Website
3. Court overturns Microsoft’s $358 million payment to Alcatel
4. Run a Free BitTorrent Tracker on Google
5. Google-Louis Vuitton row ruling due
6. Google wins trademarks challenge
7. Mininova Ordered to Remove All ‘Infringing’ Torrents
8. No Handbagging For Google In Legal Row
9. EFF Plans Appeal of Jewel v. NSA Warrantless Wiretapping Case
10. EU court adviser backs Google on Net ads