A clear but limited win for Hollywood over isoHunt
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