Is Forcing IsoHunt To Block Search Terms A First Amendment Violation?

from the legal-questions... dept

Given similar rulings, and the judge's comments so far in the IsoHunt case, I find it quite unlikely that the company has any chance of getting out from under the injunction issued against it. However, IsoHunt's lawyer, Ira Rothken (who has been involved in a few similar lawsuits), is trying to make the case that the current injunction is way too broad and a violation of the First Amendment. The argument is that the injunction bars certain searches, telling Isohunt operator Gary Fung that he cannot allow searches for certain movie titles, such as Alice in Wonderland. But, Rothken points out, the movie studios don't own that name. They may own a particular movie under that name, but using that to block all searches on the name goes beyond what the law allows:
One issue concerns how Fung should remove searches from his three search engines: Isohunt, Torrentbox and Podtropolis. The Motion Picture Association of America, which brought the case, has sent keyword searches it wants removed, like the number 10, Alice in Wonderland and Dracula, Rothken said.

"One person's copyrighted Wizard of Oz is another person's public domain work," Rothken said in a brief telephone interview Tuesday. He said the movie studios should provide URLs or hashes, which would positively identify which search link should be removed.

"The motion picture studios do not have a monopoly on names on things. That is where the injunction is violating the First Amendment," he said.
I'm sure that copyright system defenders will brush this off as being a pointless exercise, but he's actually got a very reasonable point. Asking for blocks on names alone seems to go well beyond what the law is supposed to allow. It's yet another example of the difference between real copyright law and file sharing copyright law. Copyright law does not allow for a block based on just a name. But, apparently "file sharing copyright law" does. And that's a problem, if you actually believe in the rule of law and interpreting the law accurately.


Reader Comments (rss)

(Flattened / Threaded)

  •  
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    Marcel de Jong (profile), Jun 16th, 2010 @ 4:02am

    Dear MPAA,

    I own copyrights that deal with the letters M, P and A. I demand that you cease using those letters in your name.

    Blocking the search for the number 10? WTF?! Are these lawyers on crack?

     

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    The Infamous Joe (profile), Jun 16th, 2010 @ 5:23am

    Stupid

    Do they have to stop searches for "Alice Wonderland" "Wonderland" or "Ailce in Wonedrland"?

    How can so many people not understand something as simple using a search engine? It hurts my brain.

     

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    Sean T Henry (profile), Jun 16th, 2010 @ 6:06am

    I did not know..

    "Alice in Wonderland and Dracula" that would be a great mini series to see the only question is should Alice be a vampire or should she be more like Blade, or even a Vampire sympathizer.

     

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    identicon
    Anonymous Coward, Jun 16th, 2010 @ 6:13am

    Re: Smart Car Care

    Oh dear, a spammer got in under the radar. Smith, as you are the lowest form of human filth, please die a slow painful death far away from a computer.

     

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    Bear, Jun 16th, 2010 @ 6:17am

    Injunction vs. Copyright Law

    An injunction against search terms based on individual words in titles probably violates not only the First Amendment, but also copyright law itself! Titles cannot be copyrighted.

     

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    Comboman (profile), Jun 16th, 2010 @ 6:20am

    Search term blocks are useless anyway

    Remember when Napster was forced to block certain search terms (like "Metalica")? People just started using pig latin to label their MP3s. Those who don't learn from history are doomed to repeat it.

     

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    Anonymous Coward, Jun 16th, 2010 @ 6:22am

    When has legality ever been an issue with injunctions anyway?

     

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    Big Al, Jun 16th, 2010 @ 6:35am

    Just a thought here...

    Alice in Wonderland and Dracula (the books) are both in the public domain and hence available on Project Gutenberg. Any ban on either of those titles will also stop the perfectly legal CD download of the illustrated e-books if they happen to be there.
    Now, what was that about promoting the progress...?

     

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      chris (profile), Jun 16th, 2010 @ 7:14am

      Re: Just a thought here...

      Now, what was that about promoting the progress...?

      screw the progress, what about those sweet delicious studio profits?

       

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      ChurchHatesTucker (profile), Jun 16th, 2010 @ 7:55am

      Re: Just a thought here...

      You can't copyright a title, so I could name my next story "Alice in Woderland." If I'm trying to distribute it via ISOHunt, and it's blocked, what's my recourse?

       

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        Anonymous Coward, Jun 16th, 2010 @ 9:19am

        Re: Re: Just a thought here...

        If I'm trying to distribute it via ISOHunt, and it's blocked, what's my recourse?

        Simple! You aren't supposed to distribute stuff on your own, you're supposed to go through "the system" (e.g RIAA, MPAA, etc). So, stick with "the system" like you're supposed to and you won't have that problem!

         

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      PaulT (profile), Jun 16th, 2010 @ 11:39am

      Re: Just a thought here...

      Indeed, that's what's so problematic.

      Take Dracula, for example. Bram Stoker's original novel is in the public domain, as is his short story follow-up Dracula's Guest. There are many legitimate CC-licensed audiobook readings available quite legally as well as old radio shows (including one I just found on archive.org about Sherlock Holmes vs. Dracula!).

      The more famous film adaptations are copyrighted (Universal, Hammer, Coppola), but there are other versions that are not. there are numerous movies which have nothing to do with the original property, but are known under a cash-in title that mentions it (such as Al Adamson's infamous Dracula vs. Frankenstein). There are copyrighted stage play versions, but also uncopyrighted versions have been filmed and are available online. Yet, in order to "protect" the copyrighted works, free and legal distribution of other works (which may not be commercially viable enough to get a DVD/CD/whatever release) could disappear from the public view.

      As ever, this is nothing to do with "protecting" art. It's to do with protecting a subset of copyright owners who can't be bothered to adapt to the modern world, and don't care how much other art gets lost in the process.

       

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    Anonymous Coward, Jun 16th, 2010 @ 7:00am

    ISOhunt

    Isn't it based in Canada and, if so, wouldn't that make the First amendment argument moot?

     

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      The Infamous Joe (profile), Jun 16th, 2010 @ 7:25am

      Re: ISOhunt

      If they were hosted in a country with little to no IP protections, would the RIAA just let them keep doing whatever they're doing?

       

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      Brian, Jun 16th, 2010 @ 8:57pm

      Re: ISOhunt

      @ Anonymous Coward, Jun 16th, 2010 @ 7:00am

      The case is being tried in the United States, under US law. The first amendment applies in every aspect.

       

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        Anonymous Coward, Jun 17th, 2010 @ 1:48pm

        Re: Re: ISOhunt

        The case is being tried in the United States, under US law. The first amendment applies in every aspect.

        Oh really? How's that? The case is being tried by the 9th US Circuit Court of Appeals in San Francisco, which is located on the western seaboard (i.e. within 100 miles of the US border). As we know, the US Supreme court has ruled that Constitutional rights don't necessarily apply within 100 miles of the border.

         

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    fogbugzd (profile), Jun 16th, 2010 @ 8:02am

    Could easily be used to block protected speech

    Suppose I am a politician named Joe Smith, and my opponents have accused me of being soft on crime. All I have to do is write an article or make a short video named "Joe Smith is Soft on Crime." (The work could be exactly opposite of the title since the modern political trend is to name things the opposite of what they stand for.) Then claim copyright, and get search engines to block on all searches related to Joe Smith being soft on crime. Even better, get a judge to order all searches on the topic to point to my document.

     

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    Jay (profile), Jun 16th, 2010 @ 8:34am

    My question

    I'm puzzled why so many judges are coming up against filesharing. Has our legal system become so... ancient that none of the judges understand the Sony vs Betamax decision or are they actually learning about copyright law from the RIAA directly?

     

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      Anonymous Coward, Jun 16th, 2010 @ 9:28am

      Re: My question

      I'm puzzled why so many judges are coming up against filesharing. Has our legal system become so... ancient that none of the judges understand the Sony vs Betamax decision or are they actually learning about copyright law from the RIAA directly?

      No, they're just corrupt. Judges are part of the system and most love their power and their control over others. Now file sharing (and the Internet in general) redistributes power and control away from the old system. Thus, they see it as a threat and something that should be stamped out. So they make rulings to try to do that.

       

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    telnetdoogie (profile), Jun 16th, 2010 @ 8:36am

    There's an opportunity here...

    There's an opportunity here to turn the tables on the MPAA. Google, IMDB, Yahoo, and as many other search engines as possible, in support of an open internet, should also block any searches for any of the terms laid out in this case. You know, just 'in case' someone's looking to download something illegally.

    Then the movie producers would be SO happy with the MPAA when no-one's visiting their site any more :)

     

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    Anonymous Coward, Jun 16th, 2010 @ 9:02am

    How the Law is Made

    It's yet another example of the difference between real copyright law and file sharing copyright law.

    The law means whatever the judge says it means (at least unless and until a higher ranking judge says otherwise). Thus, this *is* real law, known as "case law".

    Copyright law does not allow for a block based on just a name.

    Sure it does, because the judge said so.

    And that's a problem, if you actually believe in the rule of law and interpreting the law accurately.

    Unless and until a higher ranking judge says otherwise, this *is* "interpreting the law accurately". That's the US legal system for you, delivering the very best justice money can buy. Isn't that the way capitalism is supposed to work?

     

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    chaz, Jun 16th, 2010 @ 7:14pm

    whata buncha dusters

    WTF??? they don't own the number 10. no 1 can own a number. they need 2 get real

     

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    IsoHunter, Jun 17th, 2010 @ 12:10am

    Re: IsoHunt

    Since when can a foreign country dictate Canadian law? As far as I know the United States of We Own Everything hasn't annexed us yet. Where do they get off trying a Canadian citizen under their archaic (and borderline insane) laws?

     

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    trompetero del corral, Jun 17th, 2010 @ 7:49pm

    Are they out of their freakin' mind?!

    And... are they gonna sue google if those chains of characters are being searched using google's search engine too?
    Hahahaha
    I can't even imagine this is for real!

     

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    identicon
    Copyright protected, Jun 17th, 2010 @ 9:37pm

    Don't complain pay your tribute to Rome
    LIKE A GOOD ECONOMIC SLAVE

     

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