Hollywood wins another lawsuit against a search engine
Chalk up another legal victory for the Motion Picture Assn. of America in its battle against websites that make it easier for people to find and download bootlegged Hollywood movies. Monday, a judge in London's High Court of Justice ruled that Newzbin -- a site that indexed files posted to Usenet newsgroups -- had violated the studios' copyrights by helping members who paid a monthly fee stitch together complete movie files from the hundreds of segments posted to Usenet binaries.
In fact, the judge's ruling went to an unusual extent in finding that the defendant not only encouraged users to infringe, but actually authorized the illegal activity and made bootlegs available to its members. And while the court stopped short of banning the technology used by Newzbin, it appears poised to require the company to filter its search results to exclude the studios' movies.
Like the Torrent search sites that the MPAA has sued, Newzbin claimed it was simply doing for Usenet what Google has done for the Web. But it struck some of the most telling blows against that argument itself, submitting evidence that Justice David Kitchin dismissed as fake.
Newzbin doesn't host anything; instead, it creates various indexes to the files stored on Usenet servers. These include indexes devoted to specific categories of material, such as music and movies, and subcategories, such as "cam," "screener" and "Blu-ray." For customers who pay a monthly fee ("premium members"), Newzbin's software will create a downloadable bit of code that can be used to retrieve all the various pieces of a file available on Usenet. It also has about 250 editors, most of whom are volunteers, who create "reports" about the titles that are available for downloading:
The editors act, in effect, as a system of quality control and ensure that all of the individual messages that comprise a copy of a film or other binary work have been identified. They also add further descriptive information such as the title and overall file size and details of other attributes such as the source, genre and language of the work.
That's a greater level of involvement in the content than either Isohunt or TorrentSpy attempted, or even the Pirate Bay.
Newzbin's staff argued that their software indexed everything on Usenet, and that most of the activity on the site was related to text files in Usenet discussion groups, not copyrighted entertainment. Kitchin, however, concluded that "the truth is very different." The judge dismissed the site analysis that Newzbin submitted as "simply not credible." Similarly, he did not believe Newzbin executive Chris Elsworth's testimony that the company was unaware of any infringing activity made available on the site or promoted by its editors.
Kitchin acknowledged that he could not tell which movies were copied through Newzbin or how many times they were copied, aside from the six films the studios' anti-piracy investigators were able to download. Instead, he relied on the testimony of an expert witness for the studios, who said a sample of about 50,000 reports related to movie files on Newzbin showed that all but 0.3% were commercially available, i.e., copyrighted.
He concluded that, by selling access to reports on the files and providing software that made it easy to assemble complete movie bootlegs from Usenet, Newzbin purported to authorize its members to infringe copyrights, knowingly assisted the infringement and made the bootlegs available to its customers. The amount of damages will be set at a later session of the court, along with the terms of an injunction against the company.
Kitchin rebuffed the studios' request for an injunction against Newzbin indexing any infringing material, saying the stricture should be limited to the studios' movies. Citing the testimony of Andrew Clark of Detica Ltd., an expert called by the studios, he wrote, "[I]t would be a straightforward exercise for the defendant to filter the content of Newzbin by reference to a database provided by the claimants." That's an arguable point; the experiences of Morpheus and the original Napster suggest that creating precise filters to block access to content available online is much more easily said than done. Nevertheless, that appears to be Newzbin's fate, assuming it can pay whatever damages the court awards.
-- Jon Healey