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isoHunt Appeals Process Begins

from the not-so-simple dept

As we're still left scratching our heads over the US government's botched affidavit to seize Torrent-Finder, that includes numerous technical and legal errors -- and most importantly, does not take into account the First Amendment implications of domain name seizures -- it's worth remembering that a site that has a few similarities to Torrent-Finder, IsoHunt, is still involved in a legal fight concerning its operations.

While we keep hearing defenders of the domain name seizures claim that it's somehow "obvious" that Torrent-Finder is guilty of criminal copyright infringement, it pays to remember that IsoHunt, which is being charged with civil copyright infringement (which has a lower bar) has caused something of a stir in legal circles. The original ruling on IsoHunt broke some new ground in actually being one of the first (and perhaps most high profile case) to use the whole "Red Flag" claim to make IsoHunt guilty of contributory infringement. This is why lots of other cases now cite the district court's ruling in the IsoHunt case -- because it's really the only case that recognizes such "general knowledge" as removing DMCA safe harbors.

In other words, it's still a pretty open question how the courts will actually rule on this issue -- and yet Homeland Security and its supporters somehow think it's "obvious" that Torrent-Finder is even more guilty, despite a lack of any actual charges or a full trial? In its appeal, IsoHunt questions whether or not the injunctions placed by the judge in the district court ruling (who, it should be noted, still lets IsoHunt continue to exist, if in a modified form -- unlike the seizures) are violating the First Amendment in forcing search engines to somehow pre-censor their results, based on no factual evidence of infringement.

There certainly may be additional evidence that makes IsoHunt guilty of contributory infringement, but it's certainly not a clear cut question (though I can predict some folks in the comments will claim otherwise). However, considering that this legal battle is still being fought, it seems even more ridiculous for Homeland Security (or its recent college grad ICE agent) to declare that another search engine is somehow obviously guilty of criminal copyright infringement.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous, Dec 22nd, 2010 @ 7:13pm

    based on no factual evidence of infringement

    right on their front page under the heading "high speed downloads":

    http://torrent-finder.info/use/13420+-+FULL+-+Autodesk+MAYA+V2010+Win32+-+Xforce+01+- +Force.rar

    http://www.copyright.gov/title17/92chap5.html#501

    You're hilarious, Masnick.

     

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  2.  
    identicon
    Anonymous Coward, Dec 22nd, 2010 @ 7:23pm

    Re:

    Fighting piracy. It just works.

     

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  3.  
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    Anon, Dec 22nd, 2010 @ 7:46pm

    Learn the difference between a tracker and a search engine idiot.

     

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  4.  
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    Anonymous Coward, Dec 22nd, 2010 @ 7:47pm

    In other words, it's still a pretty open question how the courts will actually rule on this issue

    What I find funny is if the ruling had gone the other way, it would be posted on TD and referred to in other stores as "The courts have already settled the issue".

    You might want to try using the other side of your hatchet, this one is getting pretty dull now.

     

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  5.  
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    Anonymous, Dec 22nd, 2010 @ 7:54pm

    Re:

    Learn the definition of contributory infringement, willfully ignorant douchebag.

    http://definitions.uslegal.com/c/contributory-infringement/

     

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  6.  
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    Modplan (profile), Dec 22nd, 2010 @ 8:17pm

    Re: Re:

    It would help if you could understand safe harbor laws, but that's too much to expect from someone who doesn't appear to have much interest in honest debate, particularly in simply repeating something already addressed.

    http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act#Notable_court_cases

     

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  7.  
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    average_joe (profile), Dec 22nd, 2010 @ 8:20pm

    The original ruling on IsoHunt broke some new ground in actually being one of the first (and perhaps most high profile case) to use the whole "Red Flag" claim to make IsoHunt guilty of contributory infringement.

    Fung admitted that he used his own website to download infringing materials. The court noted: "Fung's actions show that Fung was aware that infringing material was available on the Defendant websites." Now is that not knowledge?

    And what about the fact that his website listed available downloads in categories with names like "box office movies" that were filled wsith infringing materials? Doesn't that seem like knowledge to you?

    The court thought the knowledge was so obvious that it didn't even raise a triable issue of fact. How exactly do you reach the opposite conclusion?

    And you do understand that it's not just what you know, but it's what you should know, right? To quote Judge Posner in Aimster, "Willful blindness is knowledge, in copyright law."

     

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  8.  
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    Freak, Dec 22nd, 2010 @ 8:23pm

    Re: Re:

    Okay, I'll bite. So how is a search engine contributing to anyone's copyright infringement? They are neither a manufacturer nor a distributor. They are not involved with the end-product in anyway besides pointing to it. The yellow pages point to business performing illegal activity, including copyright infringement, too.


    And then, if I look at your apparent standard, then you appear to be infringing in your first post, where you supply a link to something I assume you believe is infringing content, (Haven't checked it. Won't).
    What am I missing here? Why is it, when you link, it isn't contributory infringement? But when a search engine does, it is?

     

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  9.  
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    Anonymous, Dec 22nd, 2010 @ 8:32pm

    Re: Re: Re:

    I'm perfectly aware of the DMCA, thanks.

    The purpose of that law however, was not to provide "safe harbor" to sites that attempt to avert the original intention of the treaty that preceded it, the Berne Convention.

    Neither you, or Masnick, or anyone else is fooling anyone when you try to say that those sites are not based around copyright infringement. That's the tricky thing for you guys; because it's the web, the evidence is all right out in the open for anyone to see.

    People that try to claim otherwise are liars.

     

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  10.  
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    Anonymous Coward, Dec 22nd, 2010 @ 8:33pm

    Re: Re: Re: Re:

    .torrent = .crime

     

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  11.  
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    Anonymous, Dec 22nd, 2010 @ 8:42pm

    Re: Re: Re:

    What are the vast, vast majority of links on their site? Hence, what is the primary purpose of the site?

    "Contributory infringement is the participation in, or contribution to, the infringing acts of another person. Contributory infringers are vicariously liable for their actions. In copyright, contributory negligence amounts to the act of inducing another person to commit infringement of copyright."

    What was my purpose in posting that TF link?

    What is torrent-finder's purpose in posting that link?

    If you honestly don't understand what the difference is, tell me.

     

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  12.  
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    Anonymous, Dec 22nd, 2010 @ 8:47pm

    Well put as always, AJ

    btw, if you get a chance, I'd like to see what your thoughts are on the posts from last night-

    http://www.techdirt.com/articles/20101221/00420012354/full-homeland-security-affidavit-to- seize-domains-riddled-with-technical-legal-errors.shtml#c1283

    if you get a chance to comment there.

    thx

     

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  13.  
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    Anonymous Coward, Dec 22nd, 2010 @ 8:48pm

    Re:

    If a site owner can look at his own site and see things that are blatant violations of copyright (say files that have "hacked by fred, keygen includes") or full release of a DVD movie that is not yet for sale, it shouldn't have to go any further. It is right in front of their noses. They can only avoid it by being willfully blind.

    Fung hung himself legally by admitting that he used his own site to obtain copyright material illegally. There isn't anything more damning than that.

     

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  14.  
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    Freak, Dec 22nd, 2010 @ 8:58pm

    Re: Re: Re: Re:

    Torrent-finders purpose in posting it's links is to provide a directory service that people find useful, thus will visit the site, and thus, torrent finder can sell adspace.

    Your purpose, apparently, is libel.


    In that it sorts things the way it does is merely to make it more usable as a specialized directory service, and thus attracting more users, and thus paying out larger amounts of cash for adspace.


    On another note . . . I just followed that link to contributory infringement you offer. I see nothing about intention in there.
    It also notes, that if the copyright infringing object is up for (re)sale by the manufacturer/distributor it is contributory infringement. That weakly implies that it may not be infringement if there is no sale. I see no sale here.

     

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  15.  
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    Anonymous, Dec 22nd, 2010 @ 9:12pm

    Re: Re: Re: Re: Re:

    I'm going to humor you one last time.

    Let's pretend you're a lawyer and you make these statements.
    I'll respond with what a judge will very likely say.


    Torrent-finders purpose in posting it's links is to provide a directory service that people find useful

    What is it most commonly useful for?

    And thus will visit the site, and thus, torrent finder can sell adspace.

    So this site draws people to it's site because it is useful for __________, and makes money from selling advertising due to the amount of people that visit the site for that use?

     

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  16.  
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    average_joe (profile), Dec 22nd, 2010 @ 9:15pm

    Re: Re:

    Except for maybe the undisputed fact that Fung posted several messages in his forums instructing users on how to search for, download, and watch specific infringing works.

     

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  17.  
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    Anonymous Coward, Dec 22nd, 2010 @ 9:29pm

    Re:

    I bet every person that works at google has also used google to view (and as such, "download") copyrighted material as well. the vast majority of them are also aware that it is infringing.

    what the fuck was your point? google should be shut down cause copyright is stupid?

    ya. good luck with that.

     

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  18.  
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    Freak, Dec 22nd, 2010 @ 9:37pm

    Re: Re: Re: Re: Re: Re:

    So, the yellow pages draw people to its publication because it is useful for finding services, and makes money from selling advertising due to the amount of people that visit the site for that use?

    Yes.

    I'm glad you see that torrent-finder isn't any different from any number of sites which provide similar services, and similarly link to places which host infringing content.


    They actually have a lot better excuse than the yellow pages does; they are drawing all of their information from publicly available data.

    Actually, visiting the page for the first time now, and I can't even find anything such as "box office movies" to tick to only search for such content. There is nothing on the page to indicate that it is any more specialized than simply a torrent tracker searcher.



    Now, regarding your comment that is it most commonly used for . . .? (Forgetting the fact that what users use a service for doesn't reflect on the business; Google isn't thought to be in the porn business after all)
    I took a look at some stats. What stats I could find.
    About 8% of torrents are open-content. CC licenses, free to distribute, indexed by a single source. That was very easy to verify by random sampling. If I weight by completions, it rises significantly.
    I'm not sure how much more than that are open content, but it is a significant amount.
    Then I look through by completion. By completion, nearly 36% appear to be 'fake' torrents. Torrents which contain viruses, encrypted datadumps, trojans, and generally not whatever it was you were looking for. That leaves me with 56%. There's a public index of known fake torrents for the purpose of tracking them, statistically. It also includes stuff like torrents used by trojans to distribute bot-net programming, which does in fact explain why this is by far the highest completion rate category. Most of these are automatically named, and a good deal of them include hashcode.
    Now of that 56%, an amount, about 7%, seems to be clearly private data.
    About 12% is non-marked material. Stuff that might be infringing, for all I know, but isn't marked in a way that is useful to find any such content inside, and generally has a very low rate of completion. This is stuff that has names such as "dhe297vhdy63205ch".
    That leaves me with 37% which might be open data. Let's look at open source content that hasn't been included yet, and assume it isn't lower than 4%. Take in mind the 8% was all indexed and torrented by a single source, and so reflected very little of open content available.
    That leaves 33%. That 1/3 seems to have reasonably medium completion rates, and is the part that *might* contain infringing content.
    Sampling verifies this 1/3 by volume.

    I'm not going to give confidence intervals, or perform some Bayesian, because my trust in the stats available isn't high enough to think those would mean anything.

    My conclusion is that the common use is to propagate viruses and distribute information across botnets.


    Now, would you mind telling me what you think the common use is, and how you arrived at that conclusion?

     

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  19.  
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    KMA (profile), Dec 22nd, 2010 @ 9:39pm

    Re: Re:

    A/Coward: Go get a fucking life! Most of us are sick to death with your constant know-it-all daily (sometimes hourly) bullshit input on this site. Too bad the editors don't just ban you from shooting off your ignorant mouth permanently! You seem to feel compelled to respond / comment on every article ever written, and or, appears on Techdirt. Just SHUT-THE-FUCK-UP!

     

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  20.  
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    average_joe (profile), Dec 22nd, 2010 @ 9:39pm

    Re: Re:

    Simple. Plaintiffs showed that Fung had reason to know of infringing activities and that he then did nothing to remove the infringing material once the infringing activity was apparent. These facts were unrebutted by Fung.

     

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  21.  
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    Freak, Dec 22nd, 2010 @ 9:50pm

    Re: Re: Re: Re: Re: Re: Re:

    In case you miss the point there, I'm highlighting the fact that existing stats on the torrent landscape are extremely unknown where the research was done correctly, and that you do not, in fact, know what the common usage is.


    You may know of possible examples of usage.

     

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  22.  
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    Mike Masnick (profile), Dec 22nd, 2010 @ 10:03pm

    Re: Re: Re:

    Plaintiffs showed that Fung had reason to know of infringing activities and that he then did nothing to remove the infringing material once the infringing activity was apparent.

    That simplifies matters in a very dangerous way. I'm surprised, AJ, that you would say this.

    First of all, as has been noted many times, copyright holders often put their own material online. How is Fung to know which is and which is not infringing in the absence of specific notice?

    Second, the infringing material did not reside on his site, so I'm surprised that you claim he did not remove the material. IsoHunt is a search engine. It may find lots of infringing material, but that material is on other sites. It seems odd that you would hold a search engine liable for what it found, and claim it should be "removed.

    This is not as clear cut as you make it.

     

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  23.  
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    Anonymous, Dec 22nd, 2010 @ 10:06pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    On their homepage, under the heading "high speed downloads", how many of the links are legal?

    You're just being willfully blind like every other apologist.

    But I'm happy to keep pointing that out.

     

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  24.  
    identicon
    Anonymous, Dec 22nd, 2010 @ 10:09pm

    Re: Re: Re:

    You mean like... censorship?

    For pointing out the obvious, no less?

    ah, that's just priceless.

     

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  25.  
    identicon
    DMCA, Dec 22nd, 2010 @ 10:15pm

    Re: Re: Re: Re:

    Even easier: http://isohunt.com/dmca-copyright.php

    If you read the actual appeal brief (http://goo.gl/tBkeY), it even mentioned that if Plaintiffs would provide all torrent hashes that infringes their works, isoHunt will happily take them all down as they already do with other copyright holders requesting takedowns as per DMCA procedures.

    The dispute in this case was never about not taking anything down, it's about how is identification supposed to be automated and MPAA's demand for a magic filter, which the district court interprets as keyword filtering aka. censor.

     

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  26.  
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    Freak, Dec 22nd, 2010 @ 10:24pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    As far as I can tell, that's an automatically filled list.
    I am actually waiting for a reply on the details about that list.


    As it is, because all of that content is behind a paywall, I don't know if it is the content it claims to be, if it is, in fact, infringing, (They might have permission? I can't tell. All I see is the name of a file)



    And? Even then? I still only see links, pointing off-site. Which leads us back to the question of search engines providing links, and links being infringing.

    Which leads us back again to the unanswered question about why your link is different.



    Let's take the cyber out of it for a second. Putting 'cyber' before something confuses some people who don't know better.
    In India, there are a lot of people who sell illegally copied CD's for pennies on the dime.
    Let's say I happen to know of one, I happen to know that he's selling the latest [insert relevant artist here] album, I'm not stupid, so I know it's illegally copied. We're chatting, like friends, you mention you're looking for the album but it's too expensive at [local record shop]. I tell you where the guy is located and that he has the album.
    If you go there, and buy the copied album, am I guilty of contributory infringement?

     

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  27.  
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    J, Dec 22nd, 2010 @ 10:32pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    On their homepage, under the heading "high speed downloads", how many of the links are legal?

    Seeing as every single one I just clicked on forwarded me to a page suggesting I sign up for usenet service I would say, oh, all of them?

    My .02

     

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  28.  
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    Freak, Dec 22nd, 2010 @ 10:38pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    I'm guessing that's probably not the case, actually, but I really don't know.

    And of the list generated that I can see, it seems to be all amateur porn; no copyright issues there.
    *shrug*

    Of the 2 I can see that might have copyright issues, they haven't been filmed yet, so the files they reference obviously aren't on there.

     

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  29.  
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    Anonymous, Dec 22nd, 2010 @ 10:40pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Sorry, no.

    All the links point you directly to infringing material.

    Lol. this is all just too funny.

    It's like watching the Titanic's captain trying to convince everyone the ship isn't really sinking.

     

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  30.  
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    Freak, Dec 22nd, 2010 @ 10:50pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Just a sec . . .

    http://img31.imageshack.us/img31/2558/screenshot1an.png
    http://img163.imageshack.us/img163/791 /screenshot2wp.png

    Those are the two screenshots from clicking on that link.

    As you can see, it is not, in fact, a link directly to content. It offers to sign-up for free, but that's a trail version, and I cannot sign up for that trail period without a credit card.

     

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  31.  
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    Anonymous, Dec 22nd, 2010 @ 10:52pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    The difference is intent.

    My intent was to show how illegal activity is taking place.
    Which it is, right on their home page.

    Torrent-finder's intent, obviously, since they are aware of what is under their high-speed download header, is to facilitate access to illegal content.

    And to answer you're last question, yes, you're guilty of contributory infringement. But on that scale, I doubt you have to sweat the Feds coming to knock on your door...

     

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  32.  
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    Freak, Dec 22nd, 2010 @ 11:09pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Actually, contributory copyright infringement requires both active participation in the infringement, and causing, inducing, or materially contributing to the infringement.

    In the case of me telling you where you might find burned CD's out in the open, it's not infringement because I haven't been the cause, or induced you to buy the CD's. I merely made you aware that the copied CD's were available, I did not cause you to go there and buy them. For that matter, I didn't actively participate in any infringement.

    In the case of torrent-finder, it doesn't tell you, that, by the way, illegal content can be found here; No, you have to search for it. In other words, you were already searching for, and presumably looking for the material.
    Torrent-finder did not induce or cause the infringement. It did not make any material contribution, because the 'listing' for the item was already on the net; It merely linked to the listing.

    So we're brought back again to links being infringing. Can links infringe?

    Oh, except that torrent-finder didn't actively participate. They merely provided a service which you used to find infringing content. We don't blame e-bay for listings of illegal items on e-bay


    (As for the high speed list, see my other post with screenshot links; the links lead to a paywall which promises a 14 day free trial if you give it credit card info).

     

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  33.  
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    Darryl, Dec 22nd, 2010 @ 11:19pm

    From the its always the same Department

    On their homepage, under the heading "high speed downloads", how many of the links are legal?


    I'm sure mike would say he ment to say "high speed search links to other sites that are not downloads".

    Yea, right Mike..

    Are they planning to use the legal argument, that it is not a source for downloading content, but it is just a search engine like google ??

    Because, honestly, if they plan to use that defense, they should expect to lose the case.

    Because it is clear they are far more than a search engine, if they could even be called a search engine.

    They have a search facility, but so does just about every web page on the net, including TD.

    That does not make TD a search engine,, does it?

    And its clear that even relatively stupid people can clearly see this site for what it is, and WHY people go to those sites.

    It seems like the only trying to make excuses, (and not very good ones) is you Mike...

    But if you can go to the web site, and within seconds see material that is clearly in breach of copyright, then how does you 'case' stand up ?

    You can say that material is not on their web site, (but that is where people go to access it), and you can say you did not know it was infringing, but that would be silly, if you have allready stated, nay proven that illegal material is being proved by that web site.

    You're argument that some of the artists provide the material to these sites, makes no difference.. simply because I doubt very much that those artists signed over the copyrights to the works they provided.

    Giving away samples, is not the same as giving away the copyright to that work.

    And you know that Mike, so why not be honest and state it..

    Because lets face it, do you really think people are going to take you seriously when you make such off the wall statements.

    But let the case go through, we all know what the result of it will be. Even if Mike does not appear to be able to work it out..

    It seems you, Mike, have your own adgender, and that you cannot deviate from that, so you are forced to warp and bend the truth, and reality to fix your odd world view.

    May be that is not how you are, Mike, but that is certainly how you present yourself.

    You seem incapable of unbiased comment, and you try to interpret the law, or the justification for breaking the law in your typical narrow world view..

    It appears, you dont care about anything else, the law, the content creation industry, the economy or anything else..

    As long as you can try to apoligise for the copyright theifs, and file sharers..

    it just gets so predictable, if the authorities are trying to uphold the law and go after file sharing specifically illegal file sharing, they are bad.

    If a file sharing site, gets away with something, they are good, if a file sharing site is closed down, then a million more will turn up.

    If an artist give a sample of a song, you can assume he signed the copyrights for that song over to you as well.

    If its technically possible for you to do something illegal, then that is OK.

    Rules and laws, and technology to try to stop illegal file sharing is BAD.

    People trying to uphold the rule and laws, are bad.

    People who cannot make money from doing what they want, like create content, should learn how to sell T-shirts.

    Lets have something new and original PLEASE.. we know you well enough allready, you have groomed your siblings..

    Why not unbiased comment instead of your standard formula..

    Sometimes you need to change your business to stay up to date, you might want to take some of your own advice.

     

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  34.  
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    Anonymous Coward, Dec 22nd, 2010 @ 11:25pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    So the iceberg is the government?

     

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  35.  
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    PaulT (profile), Dec 22nd, 2010 @ 11:28pm

    Re:

    So, where did torrent-finder.info infringe on those copyrights? The link you posted goes to a site called usenet.nl, which doesn't appear to be directly related to them. In other words, Torrent Finder may have not infringed on copyrights any more than you have by posting that same link here.

    Even if it is somehow infringing, that's a separate section of the site unrelated to the main search function, which has no direct bearing on the issue under discussion (does a search function that searches 3rd party sites constitute copyright infringement if infringing material is found).

     

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  36.  
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    Anonymous, Dec 22nd, 2010 @ 11:29pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    In India, there are a lot of people who sell illegally copied CD's for pennies on the dime. Let's say I happen to know of one, I happen to know that he's selling the latest album, I'm not stupid, so I know it's illegally copied. you mention you're looking for the album. I tell you where the guy is located and that he has the album.

    "Contributory infringement is the participation in, or contribution to, the infringing acts of another person."

     

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  37.  
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    Anonymous, Dec 22nd, 2010 @ 11:31pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    :)

     

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  38.  
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    Anonymous, Dec 22nd, 2010 @ 11:39pm

    Re: Re:

    Right on the front page of their site under the header "High Speed Downloads", Torrent-finder deliberately offers you links, all are links to infringing material.

    That is blatant contributory infringement.

     

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  39.  
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    Anonymous Coward, Dec 22nd, 2010 @ 11:39pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    And Google points to "illegal" sites with their filetype:torrent.

    Obviously the entire point of the filetype:torrent search is to promote illegal piracy, because all of the results point to illegal sites.

    You can't deny otherwise - the results are right there in front of you. Filetype:torrent returns infringing websites, and Google knows it very well. They've been told about it enough times.

     

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  40.  
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    Freak, Dec 22nd, 2010 @ 11:41pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    "Contributory infringement occurs where someone knows that infringing activity is taking place and either induces it, causes it, or materially contributes to it. So there are two elements required to proving contributory infringement - that the infringer knew or had reason to know of the infringing activity and active participation in the infringement"

    I prefer more precise wording, the meaning becomes clearer.
    This isn't as precise as I like it, but it's the first link google offered, whaddayaexpect?

    If I take the definition as you state and interpret it, then the gov't of India is guilty of contributory infringement by building the street the vendor is selling on.

    /hyperbole

    A less sarcastic statement might be that the company who sold him his CD burner would be guilty of contributory infringement because they know that some of their customers might use it to copy CDs.

    SCOTUS disagrees: http://itlaw.wikia.com/wiki/Sony_v._Universal_City_Studios

    Just because torrent-finder knows that some of their customers may choose to sue their product for illicit purposes doesn't make torrent-finder guilty.

     

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  41.  
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    PaulT (profile), Dec 22nd, 2010 @ 11:43pm

    Re: From the its always the same Department

    "If a file sharing site, gets away with something, they are good, if a file sharing site is closed down, then a million more will turn up."

    This is demonstrably true.

    "If an artist give a sample of a song, you can assume he signed the copyrights for that song over to you as well."

    ...whereas this is moronic and not something I've ever claimed here.

    "As long as you can try to apoligise for the copyright theifs, and file sharers.. "

    Please point to the article where he's done this (no, articles criticising the responses to piracy and pointing out that it's a losing battle are not the same as defending the pirates).

    "Lets have something new and original PLEASE"

    You first. Try responding to actual criticism instead of taking the contrary position and attacking those who respond.

    "Sometimes you need to change your business to stay up to date, you might want to take some of your own advice."

    Why, is he pissing away potential profits like the entertainment industry, or does his style help generate income?

    I dare say he's a lot more successful than the kind of person typing the lengthy, yet pointless screeds that you spray this site with.

     

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  42.  
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    Anonymous, Dec 22nd, 2010 @ 11:49pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    A less sarcastic statement might be that the company who sold him his CD burner would be guilty of contributory infringement

    But no less a ridiculous analogy :)

    But seriously, no offense. You're a good sport, and I honestly appreciate that. cheers

     

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  43.  
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    Anonymous, Dec 22nd, 2010 @ 11:58pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    I understand why people bring up Google. But intent is really the issue.

    Google focuses on searching for anything. That is a major differentiation to make.

    Now that they want to get into the content business, they are in a quandary that I do not envy.

     

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  44.  
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    Mike Masnick (profile), Dec 23rd, 2010 @ 12:02am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    On their homepage, under the heading "high speed downloads", how many of the links are legal?


    So now HTML is illegal? It's possible the *files* are infringing, though you don't know that they weren't uploaded officially, do you?

    Even so, if it's an automatically generated list, then it seems rather ridiculous to claim that isohunt is guilty of infringement because of what its users searched for, doesn't it?

    Oh, I forgot, you don't care about collateral damage.

     

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  45.  
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    PaulT (profile), Dec 23rd, 2010 @ 12:15am

    Re: Re: Re:

    OK, that may be a grey area as I've admitted, although the files are still not directly hosted on that site. They're still just links to a Dutch site, which appear to be automatically generated. I don't know Dutch copyright law, could the service be legal there? What would the liability be for a site pointing people to a site where the legal jurisdiction is different from its own, etc.?

    That's not the question being asked here, though. Were that section not there, would they be infringing with their main search function? That's the point I was trying to get at. As ever, you've cherry-picked one section of the article without addressing the real point.

     

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  46.  
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    PaulT (profile), Dec 23rd, 2010 @ 12:20am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    "Google focuses on searching for anything. "

    I still fail to see why you people think this makes any real difference. I can use torrent sites to search for perfectly legal material, and I can use Google to search for blatantly infringing material. What's the difference?

    If Google introduced a torrent tab, would that make them suddenly illegal? If I use Google Image Search to search for copyrighted material, does that make GIS illegal? Where's the line?

     

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  47.  
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    Anonymous, Dec 23rd, 2010 @ 12:25am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Good morning, Masnick.

    So now HTML is illegal?

    eh, what?

    It's possible the *files* are infringing, though you don't know that they weren't uploaded officially, do you?

    Even so, if it's an automatically generated list


    Indeed it is an automatically generated list, Mike. And every time it refreshes we get new examples of infringing content.

    Unless you're trying to say,

    that Maya is now giving away their expensive software, or UFC is giving away video to their fights, or the 2004 season of Lost is now being given away, or an episode of the A-Team from 1984 is currently a special giveaway, blah diddley blah blah...

    http://definitions.uslegal.com/w/willful-blindness/

     

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  48.  
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    Anonymous, Dec 23rd, 2010 @ 12:32am

    Re: Re: Re: Re:

    That's a reasonable and good question, Paul.

    I think they might have at least better protection were it not for that section.

     

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  49.  
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    PaulT (profile), Dec 23rd, 2010 @ 12:35am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    "Indeed it is an automatically generated list, Mike. And every time it refreshes we get new examples of infringing content."

    ...and do Torrent Finder have any responsibility for adding said content to the list, adding or hosting the files, or do they just report what's being added to a 3rd party site?

    That's an important question, don't you think?

     

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  50.  
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    Anonymous, Dec 23rd, 2010 @ 12:43am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    If Google introduced a torrent tab, would that make them suddenly illegal?

    Perhaps it's telling that Google hasn't introduced a torrent tab.

     

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  51.  
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    PaulT (profile), Dec 23rd, 2010 @ 12:53am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Making enigmatic comments don't really help your arguments, nor clarify what you think the legal status actually is when real-life complications are considered.

    Are you going to answer my points, or continue to just skirt the issues? You have at least 2 outstanding questions you've failed to give an answer to, so far.

     

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    Anonymous, Dec 23rd, 2010 @ 1:00am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    I don't know the specifics of how they engineer that list, Paul.

    What matters is that they deliberately offer those links to infringing material right on their homepage; no typing in search queries required.

    Blatant contributory infringement.

     

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    Anonymous, Dec 23rd, 2010 @ 1:08am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Would Google be guilty of CI if they added that tab? Since it still would not be the primary intent of their search engine, probably not. Honestly, I'm not sure. Is the majority of bit torrent traffic legal or illegal?

    I don't know what other question I neglected to answer for you. This thread has gotten epic for me.

     

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  54.  
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    PaulT (profile), Dec 23rd, 2010 @ 1:32am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    "deliberately"

    Insert Inigo Montoya picture here.

    If they're updating automatically from a list supplied by a 3rd party, then they are doing nothing deliberately - they're just reporting factual information. No deliberation involved, in the same way that reporting the top search for torrents, reporting search results and so on is not deliberate.

    Now, you can make an argument that they've knowingly chosen infringing sites to populate that list. But, as far as the list itself, it's most likely doing nothing but report results given by a script or algorithm - exactly as Google does.

     

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  55.  
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    PaulT (profile), Dec 23rd, 2010 @ 1:50am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    "I don't know what other question I neglected to answer for you."

    The points I'm trying to get answered with little more than deflections so far, both here and in other threads:

    1. Why does the "primary intent" of a search engine matter when reporting search results? If I can find the same illegal information by typing "filetype:torrent inception DVDRip" into Google and "inception DVDRip" into Torrent Finder (or a separate tab on Google itself), why is one exempt and the other not?

    2. Why does a search engine that specialises in finding such files suddenly become illegal in your eyes? I can find a lot of infringing PDFs and JPEGs - does a search engine specialises in these formats automatically become infringing? If not, why not? If so, why does Google Image Search have immunity while a specialised function on another site does not?

    3. Why does the "majority of bit torrent traffic" matter? I suspect there's a lot more legal traffic than you seem to think (FOSS, CC music & video, WoW & other game patches, public domain, etc.), but the protocol itself is not illegal nor infringing. Why does a perfectly legal search on a perfectly legal protocol become illegal because some people abuse said protocol?

    4. Why is the link you deliberately posted in the first comment here not infringing but the automated script result from Torrent Finder is?

     

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  56.  
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    Anonymous, Dec 23rd, 2010 @ 2:25am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    1. Primary intent matters just like it matters in any other legal situation. To use a very extreme example, manslaughter vs. first degree murder. Different penalties for what is still a cold dead body.

    2. This is the same question as 1, but phrased a different way. So the same answer applies.

    3. You seem to be avoiding my question. Is the ratio heavily illegally weighted? If it is, then that is going to be more likely to present problems, isn't it? Anyway, it's not like I'm a person that advocates banning bit torrent or the ability for Google to search for it. I'm not.

    4. I answered that already above. In order to demonstrate illegal activity, I posted a specific example of it. My intent wasn't to suggest you actually download it, was it?

     

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    Anonymous, Dec 23rd, 2010 @ 2:41am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    The headline doesn't read "top search results" or "top torrents". It says "High Speed Downloads". And then there are direct links to infringing material.

    To claim that the site owner doesn't understand what appears under his headline would safely be described as willful blindness on his part, and thus a judge laughing him/her out of his/her courtroom.

     

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  58.  
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    PaulT (profile), Dec 23rd, 2010 @ 2:50am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    ....every one of which appears to be an automated link that goes to a 3rd party site, which requires membership for a high speed download service. It might be a technicality, but do you honestly think that site owners should be held directly responsible for 3rd party links returned by an automated script? Dangerous precedent indeed.

     

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  59.  
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    PaulT (profile), Dec 23rd, 2010 @ 2:55am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    1. The murder analogy is pretty silly. I see what you're trying to say, but it's not a good analogy.

    Anyway, "primary intent" in this case is to locate torrent files, which are not inherently infringing. I still don't have a satisfactory answer as to why specialising in torrents is somehow more infringing. Yes, some sites seem to show a lot of infringing files, but is this the intent of the site, or just result from algorithms based on what people are searching for? If the latter, intent to infringe is not implied.

    2. Why? Again, no answer makes any sense unless you assume that torrents are by default infringing - they're not, just as other file formats are not infringing. Why, by your logic, is GIS exempted from prosecution while an image specific engine would not be?

    3. "Is the ratio heavily illegally weighted?"

    I don't know - and neither do you. That's kind of the point, and doesn't help your argument when you make your own unsupported assumption about the default position.

    I'd welcome accurate stats, but none exist AFAIK.

    4. "My intent wasn't to suggest you actually download it, was it?"

    I don't know. I can make an assumption, which seems obvious on the face of it. But, you deliberately pointed toward an infringing file, while Torrent Finder appear to be reporting both copyrighted and non-copyrighted files without discrimination or human intervention. They also provided the exact same resource to download as you did, while you also provided additional context about what the program was.

    You cherry picked a link from a rolling update that has, while I've been looking at it today, has also included free software, UFC fights and anime that's not available legally in the US. Infringing and non-infringing content that's not arranged in any way. That's not discriminating, which is why I'm asking the questions - you're assuming intent where none may be present.

     

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  60.  
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    Anonymous, Dec 23rd, 2010 @ 3:20am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    You'll have to take that up with your congressperson and ask them how they feel about the law and contributory infringement.

     

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  61.  
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    Mike Masnick (profile), Dec 23rd, 2010 @ 3:49am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    So now HTML is illegal?

    eh, what?


    You claimed that their list was illegal. The list is HTML, not any infringing content. I just wanted to clarify, you think an HTML list is illegal.

    Indeed it is an automatically generated list, Mike. And every time it refreshes we get new examples of infringing content.

    As has been noted many times by you and your friends, if you do a search on Google, it recommends the top searches based on what you're typing. That often will point to infringing content as well. In other words, Google does the same thing.

    So, again, is Google infringing?

    Unless you're trying to say, that Maya is now giving away their expensive software, or UFC is giving away video to their fights, or the 2004 season of Lost is now being given away, or an episode of the A-Team from 1984 is currently a special giveaway, blah diddley blah blah...

    I'm saying that the holders of the copyright know that, but IsoHunt cannot know for sure. What if they did decide to give away such things. I see lots of software companies offer free versions, plenty of entertainment and sports leagues offering free versions of their shows online. It's entirely possible that those are legitimate.

    As we saw in the YouTube/Viacom case, Viacom regularly uploaded its own stuff. Same thing that we saw with Dajaz1 where record labels uploaded their own stuff.

    Why are you so sure this is all infringing?

    http://definitions.uslegal.com/w/willful-blindness/

    It's not willful blindness at all. Otherwise, based on what you say here, I should assume that Hulu is a huge criminal enterprise, right?

     

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  62.  
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    Anonymous Coward, Dec 23rd, 2010 @ 5:26am

    On their homepage, under the heading "high speed downloads", how many of the links are legal?

    Links are not illegal in any way, only the the alleged material once downloaded and it has still to be proven that 1s and 0s can be made illegal.

     

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  63.  
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    Not an electronic Rodent, Dec 23rd, 2010 @ 6:08am

    AAAaaaaaarghhhh!!!

     

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  64.  
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    Not an electronic Rodent, Dec 23rd, 2010 @ 6:08am

    AAAaaaaaarghhhh!!!

     

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  65.  
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    Anonymous Coward, Dec 23rd, 2010 @ 6:47am

    Thankfully, the courts are not impressed by the old "it was only a link" story, because they can see past the end of their (legal) noses and understand that the links are part of the process of obtaining the illegal content. The purpose of the site is to make it possible for people to find torrent files that would otherwise be just randomly out there, unreachable without the name.

    Each time there has been a legal challenge, those people determined to break the law go about changing the process of file sharing, attempting to break the steps down to such an extent that, taken narrowly, none of them appear to be breaking the law. Thankfully, the courts have agreed with the prosecution, they step back a little bit and can see what each of these moving parts do. They can understand that all of these people are working together to accomplish a common goal, to pirate movies, music, and software.

    No, html isn't illegal. Words aren't illegal either. Driving you car isn't illegal. Each are only a tool. The law doesn't judge the tool, they judge how the tool was used, and to what end. Did you drive drunk? Did you speed? Did you knowingly print or speak libelous or slanderous words? Did you knowingly operate a website to help people violate copyright?

    The courts didn't fall for the misdirection. Hopefully, more and more TD readers won't fall for it either.

     

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  66.  
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    cc (profile), Dec 23rd, 2010 @ 6:57am

    Re: Re: Re:

    Strange, most of those links seem to lead to Linux distros on Usenet...

     

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  67.  
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    Anonymous Coward, Dec 23rd, 2010 @ 7:24am

    There goes freedom into the twilight of Napolitanos brain!

     

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  68.  
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    Anonymous Coward, Dec 23rd, 2010 @ 7:26am

    Re: Re: Re:

    You have weird Ideas that do not apply to the real world and how the internet works. According to your argument you yourself are guilty of copyright infringement already for linking to the content or even the site by proxy. Missing the point by a long shot.

     

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  69.  
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    average_joe (profile), Dec 23rd, 2010 @ 7:27am

    Re: Re: Re: Re:

    First of all, as has been noted many times, copyright holders often put their own material online. How is Fung to know which is and which is not infringing in the absence of specific notice?

    The simple fact is that Fung was aware of sufficient facts and circumstances that it became his duty to take action. He cannot avail himself of his willful blindness. I don't buy it and the court didn't either.

    Second, the infringing material did not reside on his site, so I'm surprised that you claim he did not remove the material. IsoHunt is a search engine. It may find lots of infringing material, but that material is on other sites. It seems odd that you would hold a search engine liable for what it found, and claim it should be "removed.

    But he collected, received, indexed, and made available the dot-torrent files that serve only one purpose, which is to download the material they point to. The court saw right through this charade too.

    Judges aren't as dumb as you seem to think. How you can defend someone like Fung who bragged publicly about his facilitation of piracy is beyond me.

     

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  70.  
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    average_joe (profile), Dec 23rd, 2010 @ 7:39am

    Re: Re: Re: Re:

    Seriously, Mike, answer me this. Fung admitted that he used his website to download infringing content. How can he later say that he was unaware that there was infringing content on his site? Do you really think he can pretend like he didn't know about SPECIFIC material being infringing when he admitted that he downloaded SPECIFIC material that he knew to be infringing?

    Please explain how you think this is anything but clear. Please respond to this exact fact.

    Are you really so desperate to paint this pirate as a victim that you can't see his guilt?

     

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  71.  
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    average_joe (profile), Dec 23rd, 2010 @ 7:42am

    Re:

    The courts didn't fall for the misdirection. Hopefully, more and more TD readers won't fall for it either.

    That's exactly right. Judges just aren't as dumb as some people seem to think. They see the big picture.

     

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  72.  
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    Hephaestus (profile), Dec 23rd, 2010 @ 7:47am

    Re: Re: Re: Re: Re:

    ".torrent = .crime"

    Agreed, so lets outlaw .torrent files, and while we are at it lets outlaw the following file types also, mp3, mpg, avi, wmv. On the hareware side lets outlaw mp3 players, iPads, DVR's, cassette tapes, hard drives and other storage media.

     

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  73.  
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    Freak, Dec 23rd, 2010 @ 7:53am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    It's not that ridiculous.

    In fact, in Canada, there is a tax on blank CD's, and on CD burners, paid to the music industry, because they successfully won the court case this time, in claiming that the person who sold the CD burner was guilty of contributory infringement.

    If you went up there and paid 0.55$ for a CD, (probably part of a bulk deal), 0.40$ would go towards the music industry. No joke.

     

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  74.  
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    pringerX (profile), Dec 23rd, 2010 @ 8:26am

    Re: Re: Re: Re: Re:

    Where does isoHunt host these infringing files? It's true that typing in search terms in isoHunt may turn up infringing materials, but nowhere is the material itself permanently hosted by isoHunt. What you're saying is search engines must be held accountable for the results they provide. Is this truly what you think?

    Also, Mike has never condoned piracy. He just acknowledges that piracy exists, that it is all but impossible to stop, and to deal with it effectively one must work it into one's business model (or account for it).

     

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  75.  
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    duffmeister (profile), Dec 23rd, 2010 @ 8:41am

    Re: Re: Re: Re: Re:

    so all lawful uses of torrents are crime too?

    A couple of legal torrent methods:
    software patches (many game companies and a few software companies use this)
    file distribution (I have shared things I've authored via torrent under essentially a use as you'd like license.)

    I am sure there are many more as well

     

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  76.  
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    pringerX (profile), Dec 23rd, 2010 @ 8:43am

    What big picture?

    Having read all the comments thus far, those in favor of taking down isoHunt and Torrent-Finder seem to be supporting a dangerous stance. Specifically, that a search engine is responsible for the results it pulls up.

    Does this mean Google and Yahoo and Bing are all infringing, because people undoubtedly search for infringing material via these search engines? Or are they in the clear because of some arbitrary, unmeasured percentage of searches are non-infringing? Is it because their intent is not to enable infringement? Because one can claim that isoHunt and Torrent-Finder are great places to search for linux distros, which would not be off the mark. And before you challenge that "the vast percentage of isoHunt/TF users are searching for infringing material", can you provide these exact percents? For isoHunt, TF, as well as Google, Yahoo and Bing?

    The fact of the matter is, search engines offer a service. What people do with that service is their business. They may be liable, but the service provider is not. Ebay, Craigslist and internet service providers would all fall under the overly broad umbrella of "contributing to infringement".

     

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  77.  
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    average_joe (profile), Dec 23rd, 2010 @ 8:56am

    Re: Re: Re: Re: Re: Re:

    They were more than just an innocent search engine. Give me a break. They hosted the dot-torrent files and operated a tracker.

     

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  78.  
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    Anonymous Coward, Dec 23rd, 2010 @ 9:16am

    Re: What big picture?

    Having read all the comments thus far, those in favor of taking down isoHunt and Torrent-Finder seem to be supporting a dangerous stance. Specifically, that a search engine is responsible for the results it pulls up.

    Imho, the larger issue is the repeatedly implied argument that due process is a waste of time.

     

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  79.  
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    Mike Masnick (profile), Dec 23rd, 2010 @ 10:01am

    Re: Re: Re: Re: Re:

    The simple fact is that Fung was aware of sufficient facts and circumstances that it became his duty to take action. He cannot avail himself of his willful blindness. I don't buy it and the court didn't either.


    He has made it clear he's more than willing to put up a hash recognition system not unlike YouTube's ContentID.

    It seems like he did "take action."

    In the meantime, can you explain which files he needed to remove from his server, since it's obvious to you which are infringing?

    Judges aren't as dumb as you seem to think. How you can defend someone like Fung who bragged publicly about his facilitation of piracy is beyond me.

    Where did he brag publicly about it? If I remember correctly -- and I may not -- the judge took a quote completely out of context.

     

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  80.  
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    Mike Masnick (profile), Dec 23rd, 2010 @ 10:03am

    Re:

    right on their front page under the heading "high speed downloads":

    http://torrent-finder.info/use/13420+-+FULL+-+Autodesk+MAYA+V2010+Win32+-+Xforce+01+- +Force.rar

    http://www.copyright.gov/title17/92chap5.html#501

    You're hilarious, Masnick.


    Somehow I missed this originally. By your own argument, you are now guilty of contributory infringement, as you appear to have knowingly pointed people to a link that you believe is infringing.

     

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  81.  
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    Mike Masnick (profile), Dec 23rd, 2010 @ 10:06am

    Re: Re: Re: Re: Re:

    Seriously, Mike, answer me this. Fung admitted that he used his website to download infringing content. How can he later say that he was unaware that there was infringing content on his site?

    What specific content should he remove from his site. Since it's so obvious, please let us know.

    Do you really think he can pretend like he didn't know about SPECIFIC material being infringing when he admitted that he downloaded SPECIFIC material that he knew to be infringing?

    What did he admit to downloading that he knew was infringing?

    Are you really so desperate to paint this pirate as a victim that you can't see his guilt?

    I'm not trying to paint anyone anyway. I just find it troubling that you're so anxious to string up a search engine for how people use it. The implications for other search engines is beyond troubling.

     

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  82.  
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    average_joe (profile), Dec 23rd, 2010 @ 10:19am

    Re: Re: Re: Re: Re: Re:

    In the meantime, can you explain which files he needed to remove from his server, since it's obvious to you which are infringing?

    Sure, Mike, I'll tell you exactly which files he should have removed. He can start by removing the very files he admitted that he used to download infringing materials. He cannot possibly deny that he knew those SPECIFIC FILES were there since he admitted that he used them himself. You have yet to explain away this specific fact. This fact was unrebutted by Fung.

    To further answer your question, he should have also removed the files that he should have known were there--that he would have known were there--if he had only looked, as was his duty to do. You seem to be ignoring the FACT that he can't turn a blind eye to the piracy and then pretend like he doesn't see it. "Willful blindness is knowledge, in copyright law."

    Pretend all you want that he is innocent and didn't know about it, but the facts show that he not only knew about it, he participated in it. He used his own service to infringe, and in his message boards he encouraged and helped people to search for, locate, download, upload, and watch specific infringing content.

     

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  83.  
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    TDR, Dec 23rd, 2010 @ 10:26am

    AJ, torrent files have many legitimate uses as has been pointed out to you many, many times - Linux distros, CC media, WoW updates, etc. So why do you keep ignoring this?

    Also, to Anonymous, you seem to be under the sad delusion that a file always corresponds to its filename, that what the filename says is in fact always what the file actually is. But that is not always the case (files can be packaged inside other files or renamed to something different with sometimes different extensions), and the only real way to know for sure is to download and open the file yourself. But of course, you'll never do that.

    Now, either answer pringer's question and provide the exact percentage required for a site to be deemed dedicated to infringing or CI and how that percentage was determined, or issue a full and immediate retraction of everything you have ever said on this site. Now.

     

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    average_joe (profile), Dec 23rd, 2010 @ 10:34am

    Re: Re: Re: Re: Re: Re:

    What specific content should he remove from his site. Since it's so obvious, please let us know.

    I answered this above, but I'll answer it here as well. He should have removed the very content that he admitted he himself downloaded and that he knew to be infringing. On top of that, e should have removed the very files that he would have discovered to be infringing had he fulfilled his LEGAL DUTY to discover and remove.

    You simply do not seem to grasp that when someone is willfully blind, the LAW IMPUTES THAT KNOWLEDGE TO THEM.

    Fung ran more than a simple, innocent search engine. Innocent search engines don't have trackers and they don't host torrent files of which 95% are infringing. They don't have message boards where the founder and his appointed admins and mods encourage and help people to search for, locate, download, upload, and watch specific files known to be infringing. They don't have categories on their home page like "box office movies" and metatags like "warez."

    I find it simply beyond reason that you gloss over these facts and pretend like Fung isn't one of the pirate kings. It truly fascinates me that you can do this.

     

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  85.  
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    Anonymous Coward, Dec 23rd, 2010 @ 10:40am

    Re:

    "torrent files have many legitimate uses as has been pointed out to you many, many times - Linux distros, CC media, WoW updates, etc. So why do you keep ignoring this?"

    they have a very few, selective legitimate uses. Of torrent traffic, I would suspect that all of these things represent a very small drop in the bucket.

    It is like saying dealing drugs is okay, because sometimes they also give someone an aspirin for their headaches. That Aspirin doesn't excuse all the other bad acts.

    The use of torrent for distribution by these people is an attmept to lower their own costs of operation. WoW does it to save the money it would cost them to host and distribute the updates themselves. It is a bottom line issue.

    Even at that, you don't see any of those types of files in the top lists of any torrent site. Torrent finder doesn't exist to help people find linux distros.

    So that makes the rest of your argument pretty weak. A small amount of valid uses doesn't excuse the overwhelming amount of illegal activity going on.

     

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    Ron Rezendes (profile), Dec 23rd, 2010 @ 10:48am

    I think you have answered your own questions...

    "...the courts...understand that the links are part of the process of obtaining the illegal content."
    Links also lead to far more legal content than illegal content - do you have a point to make or not?

    "No, html isn't illegal. Words aren't illegal either. Driving you car isn't illegal. Each are only a tool."
    You mean just like the search site is only a tool? Accordingly, they are not illegal either then, correct?

    "The purpose of the site is to make it possible for people to find torrent files that would otherwise be just randomly out there, unreachable without the name."
    Since torrent files themselves are not illegal, and you obviously understand what the purpose of the site is as stated above, could you please tell me where the law is being broken on the search site?

     

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    average_joe (profile), Dec 23rd, 2010 @ 11:26am

    Re:

    AJ, torrent files have many legitimate uses as has been pointed out to you many, many times - Linux distros, CC media, WoW updates, etc. So why do you keep ignoring this?

    As the Ninth Circuit pointed out in Napster, that fact doesn't matter once there is actual or apparent knowledge of infringement.

     

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  88.  
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    Anonymous Coward, Dec 23rd, 2010 @ 11:39am

    Re: Re:

    .torrent = .crime

     

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  89.  
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    pringerX (profile), Dec 23rd, 2010 @ 12:08pm

    Re: Re:

    So you're saying it's better to criminalize all torrent users than to let any infringer go. That you would rather see an innocent person executed than 99 criminals walk.

    That is not how our justice system is supposed to work. Innocent until proven guilty; the burden of proof is on the accuser. Effectively what you are supporting by banning torrents outright is a policy of guilty until proven innocent. If anything, your argument is weaker (and more disturbing): A majority of illegal users does not make criminalizing innocents right in any way.

     

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    Modplan (profile), Dec 23rd, 2010 @ 2:07pm

    Re: Re: Re: Re: Re: Re: Re:

    if he had only looked, as was his duty to do.


    No, it was not his duty too. His knowledge and the evidence of such knowledge (commenting and giving technical help on torrents and various other things) suggested he did have specific knowledge, but there was no claim of duty in that he had to look for infringing files. in fact:

    In order to obtain safe harbor, a defendant cannot have knowledge of ongoing infringing activities. This “knowledge” standard is defined as “actual knowledge” or “willful ignorance.” According to the widely-cited House and Senate Report on the law, “if the service provider becomes aware of a ‘red flag’ from which infringing activity is apparent, it will lose the limitation of liability if it takes no action.” H.R. Rep. 105-551(II), at 53; see also Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1114 (9th Cir. 2007). The Congressional Report notes that the service provider is only liable if it “turned a blind eye to ‘red flags’ of obvious infringement.” 551(II), at 57. Other courts have applied this test as requiring “willful ignorance of readily apparent infringement.” UMG Recordings Inc. v. Veoh Networks Inc., __ F. Supp. 2d __, 2009 WL 3422839, at *7 (C.D. Cal. 2009) (citing Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1108 (W.D. Wash. 2004)). H.R. Rep. 105-

    Even under this stringent “willful ignorance” test, it is apparent that Defendants have “turned a blind eye to ‘red flags’ of obvious infringement.” See H.R. Rep. 105-551(II), at 57.


    There is a wilful ignorance standard for further protection of search engines.

     

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  91.  
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    Modplan (profile), Dec 23rd, 2010 @ 2:12pm

    Re: Re: Re: Re: Re: Re: Re:

    I answered this above, but I'll answer it here as well. He should have removed the very content that he admitted he himself downloaded and that he knew to be infringing.


    There is no content to download from isohunt. At best, there are .torrent files that in turn point to the content, but no actual content is hosted there.

    Innocent search engines don't have trackers


    My God, having a tracker doesn't make you responsible either.

    The only count Fung was found guilty was based on the evidence that he had specific knowledge of infringing content, and nothing else. The fact that you gloss over this, painting him as a "pirate king" (you're kidding me right?) for running a search engine that he commented on infringing .torrent files amazes me.

     

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  92.  
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    Anonymous, Dec 23rd, 2010 @ 2:48pm

    Re: Re:

    Snore. Addressed that a couple times already downthread.

    But more importantly, you'll defend piracy at all costs, won't you Masnick?

    I think your advertisers, the people you consult for, and the sponsored panels you speak on should really be made aware of that.

     

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  93.  
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    Anonymous, Dec 23rd, 2010 @ 3:34pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Hulu's legal notices are right on their front page.

    You're just a willfully blind piracy apologist, Mike.

    And everyone knows it.

     

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    average_joe (profile), Dec 23rd, 2010 @ 3:46pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    There is no content to download from isohunt. At best, there are .torrent files that in turn point to the content, but no actual content is hosted there.

    Nonsense. Dot-torrent files have only one purpose--to download the full torrent. The court wasn't tricked by that argument. Believe it or not, federal judges are a rather bright bunch.

    The only count Fung was found guilty was based on the evidence that he had specific knowledge of infringing content, and nothing else. The fact that you gloss over this, painting him as a "pirate king" (you're kidding me right?) for running a search engine that he commented on infringing .torrent files amazes me.

    Well, obviously you didn't read the court's opinion granting summary judgment against Fung. He was found liable, not guilty, of inducement infringement. The judge did not analyze his liability for contributory or vicarious infringement since that analysis would have been superfluous.

    I'm not glossing over anything, Modplan. You just don't know what you're talking about. Fung had millions of users who were downloading torrents of which 95% were infringing. Yeah, right, he's not a pirate king. You guys will say anything to defend these pirates. It's amusing.

     

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    Modplan (profile), Dec 23rd, 2010 @ 4:58pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Nonsense. Dot-torrent files have only one purpose--to download the full torrent. The court wasn't tricked by that argument. Believe it or not, federal judges are a rather bright bunch.


    From the IsoHunt appeal:

    Torrent sites share resources and operate together in a collective fashion. Special purpose torrent sites need general aggregators like isoHunt to spread torrents through the BitTorrent ecosystem. isoHunt collects torrents from 225 torrent sites. Fung watches spiders from Google and numerous torrent sites and other search engines as they index Defendants’ sites. (ER0488:12-24) Trackers also operate collectively and redundantly. A dot-torrent file often identifies multiple trackers that serve as backup and parallel channels. isoHunt collects data from 1939 online trackers. No single tracker could handle more than a tiny share of the combined load. (ER0487:7-14.) Like other BitTorrent developers, Defendants build their systems from generic software, typically available as free open-source code. Fung’s innovations keep his systems among the most competitive in the market but all essential BitTorrent operations are realized by means of straightforward combinations of generic components. (ER0488:25-489:10.)

    One chief reason stated by the District Court for imposing liability is that:

    “dot-torrent files downloaded from Defendants’ sites correspond to and automatically cause the downloading of Plaintiffs’ copyrighted content. (ER0049:10-12, 22-28; see also ER0036:7-18, ER0060:3-11.)

    The District Court stated:
    Because dot-torrent files automatically trigger this content-downloading process, it is clear that dot-torrent files and content files are, for all practical purposes, synonymous. To conclude otherwise would be to elevate form over substance.
    (ER0049:26-28, emphasis in original.)

    The District Court erred. A dot-torrent file downloaded from Defendants’ system is tiny compared to the corresponding content file, e.g. a major video production typically takes 17 hours to download via BitTorrent. (ER0478:14-20, ER00495:9-27.) Downloading a dot-torrent file leads to successfully downloading content only if a designated tracker and a seed remain online. (ER0511:15-20.) For “practical purposes,” the two downloads are not synonymous.” One is quick and sure and the other is prolonged and chancy. “Automatic downloading” is a feature of BitTorrent technology for which defendants have no responsibility. “Automatic downloading” in the BitTorrent
    network is like “automatic downloading” of .pdf files (for Adobe Acrobat software) when a user clicks on a link in a Google list. Individual users control whether their client applications, such as Azareus, have “automatic downloading.”


    It seems Joe you will say anything to promote the idea that any torrent site operator is a criminal simply for running the site. Indeed, .torrent = .crime.

    To acquire IRC data, isoHunt’s automated process or “bot” entered chat channels, announcing its presence. In an online isoHunt forum (see Facts B.4), people complained to Fung that the bot resembled investigators for the copyright enforcement group, recording Industry Association of America or RIAA. Posters disliked RIAA. One posting complained about “mondo big corporations making bizillions of dollars from record sales” while indie artists were suffering. In a posting on March 30, 2003, Fung quoted that posting and stated:

    “agreed. they accuse us for thieves, and they r right. Only we r ‘stealing’ from the lechers (them!) and not the originators (artists).”
    (ER0459-460 (SUF 14), ER0548:18-549:7, ER0550:16-551:8, ER0568-570 (message string).)

    Fung altered the IRC bot to announce: “Files...are now being indexed for isoHunt.com...We completely OPPOSE RIAA & Co., so do not be alarmed by our indexing activities.” (ER0460 (SUF 18), ER0541:18-547:2, esp. ER0544:22-17 545:13, ER0554-557 (message string discussing and quoting the bot). The District Court prominently quoted Fung’s messages, made in connection with IRC and RIAA, as evidence of Defendants’ intent to induce infringement of
    Plaintiffs’ movies and videos through BitTorrent. (ER0040:9-20, ER055:22-56:6.)

    [...]

    3. Defendants’ technical features are copyright neutral.

    The District Court found that “infringing materials do not pass through or reside on Defendants’ system.” (ER0066:22-23.)

    However, the District Court ruled:

    Essentially, Defendants argue that they merely assembled a website that combined already-existing technologies, and that they did not include any unique innovations that were specially tailored to assist in the distribution of copyrighted works. These assertions are inapposite. The unrebutted factual evidence shows that Fung designed programs which improved the functioning of his websites with respect to infringing uses.
    (ER061:8-14.)

    The District Court disregarded the fact that Defendants have no means to distinguish infringing from non-infringing contents. Infringing contents do not pass through or reside on Defendants’ system. (ER0477:20-25.) The copyright status of contents must be inferred from filenames and size of files. “To protect plaintiffs’ copyrights, it would be necessary to block many independent video producers and to exclude public domain materials and/or video materials authorized for general distribution.” (ER0497:4-14.)

    Plaintiffs alleged the importance of Fung’s innovative “BTHub.” (ER0361:26-362:16.) BTHub addressed the problem that a torrent file identifies specific trackers whose accessibility at a future time is uncertain. BTHub re-wrote torrent files to lead to an additional “tracker,” that was really a “tracker of trackers” in Defendants’ system. With BTHub, the user would have a better chance to connect to an operating tracker and to an active seed. (ER0487:15-19.) Plaintiffs alleged that BTHub “increased the efficiency and reliability of successful[] downloading of Plaintiffs’ copyrighted works.” (ER0361:27-362:2.)

    The description of BTHub by Plaintiffs’ expert, Prof. Horowitz, does not identify any distinction between copyrighted works” and other works. (ER0520:11-521:13.) As noted by Professor Horowitz, Defendants discontinued BTHub because of system limitations but developed other means for the same end: “to make the content download more reliable.” (ER0521:14-363:5, ER0522:15-19.) The District Court did not mention BTHub in its rulings. As first of the “technical features promoting copyright infringement,” the District Court identified “Defendants’ websites [that] allow users to locate dot-torrent files” through a search engine. Then the District Court cited “automatic downloading."(ER0060:3-11.) BTHub, search engines and “automatic downloading” all handle copyright-infringing and on-infringing materials without distinction.


    Yes Joe, someone who has a registered DMCA agent is obviously king of the pirates, right?

    The District Court did not mention evidence of Defendants’ attempts to prevent infringement. Plaintiffs alleged:

    “Defendants have in the past implemented filtering of searches and torrent postings of certain copyrighted content, including Microsoft content.” (ER0364:7-9, see also ER0494:1-7.)

    Unfortunately, Defendants’ experiments fail to properly filter for, e.g., Microsoft content or pornography, for
    which Fung has a personal dislike. (ER0493:14-494:1.) Defendants follow “notice-and-take-down” provisions of the Digital Millennium Copyright Act (“DMCA”). (ER0499:7-13.)
    Allen Parker is Defendants’ Registered Agent with the copyright office for DMCA purposes. (ER0247:13-14.) Parker has fulfilled and performed his duties as Designated Agent. (ER0248:9-12.) He has successfully worked with “[n]umerous copyright owners and their agents, including, but not limited to RIAA (Alex Tomescu, Traci Crippen primaries), WebSheriff (John Giacobbi), StarDock Corporation, GrayZone and Microsoft.” (ER0249:28-216:2.) He talks to such persons on the telephone and resolves difficulties. (R0557:14-558:2.)

    Defendants have not been able to work with agents of Plaintiffs or the Motion Picture Association of America (“MPAA”). “In fact, ... it’s only been the last six months or so that I’ve received e-mail notices from your side.”
    (ER0554:20-25.)


    Plaintiffs or MPAA apparently employ BayTSP, which has a history of abuse, including notices sent to Defendants’ service providers rather than to Defendants and heavy volumes of notices over a short period of time, called “mail bombs.” Accordingly, Defendants have blocked BayTSP from access to their servers; but Defendants did send BayTSP a telephone number to call should it desire to cooperate on notice-and-take-down procedures. Defendants maintain procedures that are authorized by the DMCA and that are efficient and transparent.

     

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    average_joe (profile), Dec 23rd, 2010 @ 5:02pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Nonsense bordering on idiotic. We'll see who wins on appeal, Modplan. Have a great night.

     

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  97.  
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    Anonymous, Dec 23rd, 2010 @ 5:22pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    You just demonstrated why these sites are doomed and they don't operate in the US.

    They can't pretend they don't know what is occurring on their site. That's willful ignorance/blindness.

    A site can't set itself up, have thousands or millions of infringing files and simply say "send us a DMCA notice for each one and we'll take it down". That's circumventing the intent of the law.

    It's also why the judge screwed up in the YouTube trial and why it is going to be overturned.

     

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  98.  
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    Anonymous, Dec 23rd, 2010 @ 5:27pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    A site can't set itself up, have thousands or millions of infringing files and simply say "send us a DMCA notice for each one and we'll take it down". That's circumventing the intent of the DMCA.

     

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  99.  
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    Anonymous, Dec 23rd, 2010 @ 5:32pm

    Re: Re: Re:

    I don't think an exact percentage has been determined, but if the percentage of illegal files a site links to numbers more than 50%, then the majority of their business would be based around illegal activity.

     

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  100.  
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    Mike Masnick (profile), Dec 23rd, 2010 @ 5:52pm

    Re: Re: Re: Re: Re: Re: Re:

    Sure, Mike, I'll tell you exactly which files he should have removed. He can start by removing the very files he admitted that he used to download infringing materials.

    There's a problem there, since those files do not exist on his site. So, again, I have to ask which files -- specifically -- should he remove. You did not answer the question.

    AJ, why didn't you answer my question? What did he admit to downloading that he knew was infringing?

    To further answer your question, he should have also removed the files that he should have known were there--that he would have known were there--if he had only looked, as was his duty to do.

    The DMCA -- which I believe you've read -- states the opposite. There is no such duty.

    Furthermore, once again, I have to ask how he's supposed to know which files are infringing and which were uploaded on purpose. It is a serious question, and I'm sort of confused why you don't answer it.

    Pretend all you want that he is innocent and didn't know about it

    I'm not "pretending." I'm simply asking questions. Which you seem quite upset about.

    he facts show that he not only knew about it, he participated in it. He used his own service to infringe, and in his message boards he encouraged and helped people to search for, locate, download, upload, and watch specific infringing content.

    I asked you for the specifics on that, and you did not give it. Where did he admit that he infringed and where did he encourage others to infringe?

    It's a pretty simple question. Why did you not answer it?

     

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    average_joe (profile), Dec 23rd, 2010 @ 6:13pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    Mike,

    You're playing silly games. He admitted under oath in a deposition that he used his own website to download files that he knew to be infringing. I don't know what the names of those files were, so let's call them x, y, and z. Once he knows that x, y, and z were available on his website, it became his duty to remove them. He did not. All of your games cannot negative this simple fact.

     

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    Modplan (profile), Dec 23rd, 2010 @ 6:26pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Reverted to your old ways I see Joe. For a while I thought you may actually have been interested in honest discussion. But alas, you cannot think of another way to equate a site with a registered DMCA agent and tried to work with the MPAA as being run by a veritable king of pirates, let alone developed means to filter certain materials but were unable to.

    One last sginificant (and lengthy) quote from the IsoHunt appeal:

    The District Court further held: “the Court’s injunction is limited to Plaintiffs’ copyrights and will not substantially interfere with any claimed non-infringing aspects of Defendants’ system.” (ER0015:17-19.)By the time Defendants filed their Application for a Stay of Enforcement in the District Court on May 27, 2010, Plaintiffs had served their first list of over 23,000 titles that included “10,” “21,” “Birth,” “Cars,” Dad,” “Dave,” “Soldier” and “Sunshine.” Huge quantities of public domain and other non-infringing materials were being impacted. (ER0109:22-113:25.) Defendants requested court approval of their “lite” site for US visitors. (ER0113:26-114:17, ER0116:6-9.) On June 11, 2010, the District Court denied Defendants’ Request for a Stay but modified the Permanent Injunction to require Plaintiffs’ to provide more information in the “lists of titles.” (ER0005:13-6:21.) As to the two branches of Defendants’ operations (“lite” and “main”), the District Court stated:

    The Court is not presently in a position to decide whether or not Defendants’ suggestion would fully comply with the Injunction, but if it would, then Defendants are free to use this approach. (ER0005:24-28.)

    On August 2, 2010, Plaintiffs filed a Motion for Contempt, asserting that the Canadian-access “main” site had completely failed to comply with the Injunction and that the filter on the US-access “lite” site was a sham. (ER0096:10-27.) In opposition, Fung declared he was following the District Court’s suggestion that he was “free to use [his] approach” on the lite/main branching. (ER0084:7-16.) Defendants’ employees had spent some 460 hours trying to comply with the District Court’s Injunction. (ER0083:26-84:6.) Over 840,000 torrents were being blocked and Plaintiffs were complaining about torrents where their own “list of titles” was defective. “We have spent many hours tracking down and correcting ... errors and discrepancies in Plaintiffs’ ‘list of titles.’ ” (ER0086:19-90:19.) It was clear that many authorized works and public domain works were being blocked. (ER0089:14-15.)

    [...]

    B. Free Speech Principles Prohibit Imposing Liability on the Basis of Scattered “Messages” That Have No Demonstrated Relationship to Any Actual Infringement.

    As set forth supra in Facts B.2, the District Court quoted statements made by Fung personally and through an automated process or “bot” during isoHunt’s early days as an IRC search engine. The statements had no actual connection with copyright infringement but were sarcastic. The bot statement was solely directed at RIAA copyright enforcers. A TV interviewer asked Fung “So everyone wants to try The Da Vinci Code [movie] for free, right?” Fung responded: “Apparently, yes.” (ER0491:2-7.) The District Court interpreted the exchange: “Fung also stated users were attracted to his website by ... The Da Vinci Code.” (ER0040:20-22.) In another interview, Fung said:

    “to me, copyright infringement when it occurs may not necessarily be stealing.” (ER0055:16-56:2.)

    All the foregoing statements were emphasized by the District Court and cited as evidence that Fung intended to induce copyright infringement through BitTorrent. (ER0040:9-22, ER055:22-56:6.) The District Court’s rulings were erroneous. “The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 391, 112 S.Ct. 2538 (1992). There is no evidence that any of the foregoing statements “induced” anyone to commit copyright infringement. All the statements were uttered in situations that were separate and distinct from the torrent sites and trackers that are alleged material aids to infringement. Fung did not urge anyone to violate the law or to engage in copyright infringement. His statements were well within the limits of Constitutionally-protected speech. Humanitarian Law Project v. Holder, 130 S.Ct. 2705, 2724-2727 (2010) (Congressionally-authorized prohibition of provision of “material support” did not violate Free Speech rights); Ashcroft v. Free Speech Coalition, 535 U.S. 234, 253; 122 S.Ct. 1389 (2002); Bartnicki v. Vopper, 532 U.S. 514, 529, 121 S. Ct. 1753 (2001); see also Entertainment Software Association v. Blagojevich, 469 F.3d 641 (7th Cir. Ill. 2006). The District Court’s rulings have a chilling effect on the exercise of First Amendment rights by third-party Internet developers and Defendants are proper parties to bring their concerns before the Court. Broadrick v. Oklahoma, 413 U.S. 601, 611-615, 93 S. Ct. 2908 (1973). The rulings tell Internet developers that criticism of copyright enforcement or advocacy concerning copyright disputes may be treated as inculpatory should copyright litigation ever be filed. The District Court refused to consider First Amendment limits to evidence, holding that “the present case involves conduct not expression.” (ER0060:25-26, emphasis in original.) The District Court erred. In Humanitarian Law Project, supra, 130 S.Ct. at 2724, the Supreme Court held: “the conduct triggering coverage under the statute consists of communicating a message.” Therefore, the Court required “more rigorous scrutiny” of the messages and a higher level of Constitutional protection. Id. The same principle applies here. The District Court erroneously inculpated Defendants on the basis of anonymous or non-anonymous forum messages. In re Anonymous Online Speakers, 611 F.3d 653 (9th Cir. 2010). Messages quoted supra and in the Summary Judgment Order were all improperly considered as evidence in this case. This Court should reverse. The new authorities decided since the Summary Judgment Order will require detailed consideration of Defendants’ other messages in subsequent proceedings.

    The District Court Erred In Dismissing Defendants’ DMCA Defenses.

    [...]

    B. The District Court Erroneously Refused to Consider Defendants’ DMCA Defenses and Erroneously Decided Genuine Issues of Fact.

    Defendants alleged affirmative defenses under the DMCA. (ER0339:4-13.) Defendants sought a “safe harbor” pursuant to 17 U.S.C. § 512(a) for trackers (providing routing or connections through automatic technical processes) and, for torrent sites, 17 U.S.C. § 512(c) (information residing on networks at direction of users) and/or 17 U.S.C. § 512(d) (information location tools). Defendants asserted the defenses during oral argument. (ER0191:9-193:11.) As set forth supra, Facts B.5, Defendants maintain a robust DMCA policy and practice. The District Court rejected Defendants’ claims under §§ 512(a) and (c) “[b]ecause infringing materials do not pass through or reside on Defendants’ system.” (ER0066:22-23.) The District Court erred. As this Court said in CCBill at 488 F.3d at 1116:

    We reject Perfect 10's argument that CCBill is not eligible for immunity under § 512(a) because it does not itself transmit the infringing material. ... There is no requirement in the statute that the communications must themselves be infringing, and we see no reason to import such a requirement. It would be perverse to hold a service provider immune for transmitting information that was infringing on its face, but find it contributorily liable for transmitting information that did not infringe.

    The District Court further ruled:

    “Plaintiffs’ claims are premised on active inducement of infringement, not passive transmission or storage of infringing materials.” (ER0066:27-28.)

    The District Court erred. Grokster never suggested an exception to an Act of Congress. There is nothing in the DMCA that supports such a distinction. The District Court stated:

    Further, Defendants have not introduced any evidence that they “act[ed] expeditiously to remove, or disable access to, the [infringing ] material” once they became aware that this infringing
    activity was apparent. (See generally Defs.’ SGI ¶¶ eee-lll.) (ER0067:3-6, as in original.)

    The District Court is in error. The evidence cited by the District Court shows that Defendants acted expeditiously to remove and/or disable access to materials when notified pursuant to the DMCA. See Facts B.5 and ER0471-474.

    [T]he DMCA ... grants a safe harbor against liability to certain Internet service providers, even those with actual knowledge of infringement, if they have not received statutorily-compliant notice. (Visa at 494 F.3d 795, n.4., citing CCBill.) See also UMG Recordings, Inc. v. Veoh Networks Inc., 665 F.Supp.2d 1099 (C.D.Cal., 2009); Viacom Intern. Inc. v. YouTube, Inc., 718 F.Supp.2d 514, (S.D.N.Y. 2010). The District Court itself noted that “there appears to be a triable issue of fact as to the adequacy of the statutory notice that Plaintiff provided to Defendants.” (ER0067:25-27.)

    The District Court ruled that “red flags” deprived Defendants of DMCA defenses as a matter of law. (ER0068:7-71:11.) In so ruling, the District Court relied on the “90% to 95%” evidence discussed in Facts A.2.d and C.2. But the District Court also ruled that “it simply does not matter whether” the correct figure is “75% (to pick a number).” (ER0039:18-27, ER0069:6, 26). Using a standard of “willful ignorance” (ER0068:7) and the 90% to 95% figure, the District Court concluded: “Fung was aware that infringing material was available on Defendant websites” and Defendants were “willfully ignorant of ongoing copyright infringement.” (ER0068:14-15, ER0069:11.) The District Court erred. Any such knowledge was purely constructive and purely constructive knowledge is insufficient under the DMCA unless DMCA notice is given. CCBill, quoted supra. The District Court erred when it ignored Defendants’ actual DMCA policy and practice. Id. See also Viacom v. YouTube, supra. The District Court erred in a summary judgment proceeding when it disregarded all of Defendants’ evidence about their operations and intentions and adopted the narrow view presented by Plaintiffs that was limited to selected items arranged to support certain inferences. Finally, the District Court stated “one last reason” to dismiss Defendants’ DMCA defenses, citing rules governing “repeat infringers.” (ER0070:20-ER0071:11.) However, Plaintiffs stated that they “have not asserted that defendants are disqualified from any DMCA safe harbor by reason of defendants’ failure to adopt and implement a policy of repeat infringers.” (ER0471:23-472:4.)

     

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  103.  
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    Modplan (profile), Dec 23rd, 2010 @ 6:30pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

     

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  104.  
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    Modplan (profile), Dec 23rd, 2010 @ 6:33pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    You do realise the same judgement was made of Veoh right, the case the was cited here? Technically speaking, that ruling just reaffirmed that standard, and now so has the Youtube case. You're delusional if you think the Youtube case should be overturned.

     

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  105.  
    identicon
    DMCA, Dec 23rd, 2010 @ 7:20pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    If isoHunt frequently removes torrents by hash/URL once notified, also frequently stated in court records, what makes you think the torrents that Fung admitted to have downloaded were not removed subsequently once confirmed to be infringing? Can Fung not download them for research purpose to verify the content?

    It's a damn and be damned problem isn't it. Try to verify downloads and it's called copyright infringement. Not verify and you risk taking down mislabeled files. Also note that Canada has blank media levies and whether downloading (not uploading, specifically) is infringing in Canada, especially for research purpose, is very much debatable. Just because US copyright laws make criminals out of most internet users doesn't mean other countries want the same.

     

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  106.  
    identicon
    Anonymous, Dec 23rd, 2010 @ 9:43pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Veoh provided assertive copyright protection measures. While YouTube now does that, at the time of the lawsuit, their business was largely succeeding due to infringing content.

     

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  107.  
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    Anonymous, Dec 23rd, 2010 @ 9:50pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    YouTube, exactly. They'll lose their appeal. Veoh had a much better system in place.

     

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  108.  
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    PaulT (profile), Dec 24th, 2010 @ 12:26am

    Re: Re: Re:

    *sigh*

    You know the problem here? I can't tell if this is meant to be sarcastic or a just true display of idiocy any more...

     

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  109.  
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    PaulT (profile), Dec 24th, 2010 @ 12:32am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    "Hulu's legal notices are right on their front page."

    So, if Isohunt had the same legal notices, it would free them of any piracy accusations as well? Good to know.

    "You're just a willfully blind piracy apologist, Mike."

    You heard it here folks, calls for justice, laws based on technical realities and the elimination of highly dangerous collateral damage are now just being a "piracy apologist".

    Why are those who can't be bothered to log in always so pathetic?

     

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  110.  
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    PaulT (profile), Dec 24th, 2010 @ 12:36am

    Re: Re: Re: Re:

    "Links to", I damn well hope not. Hosts, maybe, but automatically generated links are very dangerous thing to criminalise.

     

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  111.  
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    techflaws.org (profile), Dec 24th, 2010 @ 4:44am

    Re: Re: Re:

    So do it instead of writing stupid comments like that.

     

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  112.  
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    techflaws.org (profile), Dec 24th, 2010 @ 4:49am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Actually it's funny to see guys like you fail cause if you're really dumb enough to believe filesharing will be stopped once sites like torrentfinder are gone is hilarious.

     

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  113.  
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    techflaws.org (profile), Dec 24th, 2010 @ 5:00am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    citation needed

     

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  114.  
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    techflaws.org (profile), Dec 24th, 2010 @ 5:02am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Your're correct. Viacom will lose their appeal.

     

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  115.  
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    techflaws.org (profile), Dec 24th, 2010 @ 5:04am

    Re:

    LOL, so you're running out of points to make and are so desperate to ask AJ (of all people) to help you out? Good luck with that.

     

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  116.  
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    techflaws.org (profile), Dec 24th, 2010 @ 5:07am

    like always

    tl;dr

     

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  117.  
    identicon
    Not an electronic Rodent, Dec 24th, 2010 @ 5:55am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    If I understand the argument you appear to be making you are saying;
    Because 95% of torrents are infrigning (That sounds like a NPFA to me but we'll go with it), that torrents themselves are de facto infringing and that anyone who sets up a business that automatically seaches for and indexes torrent files exclusively and not other items is therefore automatically guilty of infringement for carrying that index and allowing access to infringing content.

    Am I close?

    Or are you instead suggesting that anyone who sets up such a service has a duty to test all such links and torrent files automatically gathered and remove any that are found to be infringing? If I'm closer there how do you suggest that is accomplished in order for such a business to be "compliant"?

    Also, does this apply only to sites that refer specifically to torrent files? Or to sites that have a specific torrent file search section? Or to any site that allows the searching of torrent files?

     

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  118.  
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    average_joe (profile), Dec 24th, 2010 @ 8:04am

    Re: Re: Re: Re: Re: Re: Re: Re:

    OK, Mike. I'll play your game.

    Let's see you refute ALL of this:

    In addition to the general structure of the pages maintained by Defendants, Defendant Fung has personally made a number of statements regarding the copyrighted nature of the works available on his sites. In one such post on the Isohunt website Defendant Fung responded to a user's post by stating "they accuse us for [sic] thieves, and they r [sic] right. Only we r [sic] 'stealing' from the lechers (them) and not the originators (artists)." (SUF, at ¶ 14.) In an interview Fung stated: "Morally, I'm a Christian. 'Thou shalt not steal.' But to me, even copyright infringement when it occurs may not necessarily be stealing." (Id. at ¶ 15.) In another post Fung stated: "We completely oppose RIAA & Co. so do not be alarmed by our indexing activities. . . ." (Id. at ¶ 18.) In another interview Fung also stated that users were attracted to his website by the availability of a blockbuster film of the time, The Da Vinci Code.

    (Id. at ¶ 20.) Fung's other statements included references to aiding individuals in the download of then-popular movie titles such as Matrix Reloaded and Lord of the Rings: Return of the King, pointing users to links where they could download copies of these movies through the torrent sites. (Id. at ¶¶ 27-29.) Other statements made on the website encouraged or made [*13] available the downloading of illegal content by users who were browsing the discussion forums on Fung's websites. (Id. at ¶¶ 33-46.) Plaintiffs also provide details relating to the assistance that Fung would give website users in downloading copyrighted material within the forum discussions of the various websites. In one such instance, in response to a user query on how to make a DVD from a downloaded copy of the film Pirates of the Caribbean, Fung provided a link to a website that would allow the individual to burn a DVD of the downloaded copy. (SUF, at 68.) Fung provided users with assistance on a number of occasions regarding how they could go about playing or extracting the copyrighted films that they downloaded from the Defendants' websites. (Id. at 70, 72.) Fung also provided assistance to a user who was searching for episodes of the television series Star Trek: Enterprise; Fung provided links to search possible search queries that would turn up the work. (Id. at 71.) Fung also provided technical advice regarding the use of "trackers" in response to emails containing dot-torrent files connected with copyrighted television programs, such as the NBC series The Office. (Id. at 79.)


    And this:

    The clearest instance of Defendants' solicitation of infringing activity is the "Box Office Movies" feature of Defendants' Isohunt site. As Defendant Fung admitted in his deposition, this feature essentially involved Defendants' periodic posting of a list of the top 20 highest-grossing films then playing in United States, which linked to detailed web-pages concerning each film.20 Each of these pages contained "upload torrent" links allowing users to upload dot-torrent files for the films. Though Defendants eventually discontinued this feature, they did not remove pages that had already been created. (SUF, ¶¶ 50-55.) By implementing this feature, therefore, Defendants engaged in direct solicitation of infringing activity.

    And this:

    Defendant Fung made statements on the Isohunt website encouraging or assisting infringement. He posted on his website a message telling the website's users that they should "try Peer Guardian," a software application that can be used to frustrate copyright enforcement against file sharers. (SUF, ¶ 94.) Accord Grokster III, 545 U.S. at 937-38 . Fung also provided a link to a torrent file for the recent film Lord of the Rings: Return of the King on the Isohunt site and stated, "if you are curious, download this." (SUF, ¶ 29.) Additionally, Fung created a promotional page inviting users to upload torrent files for Matrix Reloaded, another recent film. (SUF, ¶ 28.)

    And this:

    Defendant Fung personally posted messages in the Isohunt discussion forums in which he provided technical assistance to users seeking copyrighted works. Specifically, in response to an Isohunt user who posted a message stating he did not know how to watch a file containing Lord of the Rings: Return of the King which he had recently downloaded, Defendant Fung provided directions on how to extract and play the video file. (SUF, ¶ 69.) The record is replete with such instances of technical assistance provided to users by Defendant Fung through the forum. (See, e.g., SUF, ¶ 70 (Fung provided technical assistant to users who downloaded the film Kill Bill); SUF, ¶ 71 (Fung provided assistance to user searching for Star Trek: Enterprise episodes by giving search tips); SUF, ¶ 79 (Fung explained how to attach a tracker URL to a dot-torrent file sent to him by an Isohunt user, and recommended the user use the tracker at torrentbox.com).)

    And this:

    Even under this stringent "willful ignorance" test, it is apparent that Defendants have "turned a blind eye to 'red flags' of obvious infringement." See H.R. Rep. 105-551(II), at 57. Most importantly, Defendant Fung himself has engaged in unauthorized downloads of copyrighted material; even if those downloads were done abroad and were not actionable under United States copyright law (and thus would not provide "actual knowledge" of illegal activity for purposes of 17 U.S.C. § 512(d)(1)(A) ), Fung's actions show that Fung was aware that infringing material was available on the Defendant websites. Given the "worldwide" nature of the world-wide web, it would have been obvious that United States-based users could access these same infringing materials and thus engage in infringing acts. Defendants provide no evidence to rebut this obvious conclusion that United States-based users would have been able to download the same copyrighted works that Fung himself downloaded.

    Let's see you rebut all of that, Mike. And there's plenty more where that came from.

    Or do you care to admit that you were wrong and Fung did not run an innocent search engine?

    I'll be waiting, Mike.

     

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  119.  
    identicon
    TDR, Dec 24th, 2010 @ 10:04am

    AJ, I see you haven't address my point about how filenames don't always match file contents all. Do it. Now. Otherwise you're being evasive and deceitful. And provide the exact methodology by which any given file's contents can be empirically verified without opening it, if you think that's somehow even possible - mere suspicion and opinion is not enough.

    And also provide empirical data showing how you arrive at your assumption that most torrent files are infringing. Specific, non-entertainment industry-backed data. Not the legalese you are so fond of confusing people with. Either that or a complete retraction of everything you have ever said on this site, along with a complete apology. If you don't do any of the above, you will simply be proving yourself to be an industry shill that has no interest in basic Constitutional rights and has no understanding that law is fallible and that it is not wrong to ignore laws that are unreasonable, bad, or exist solely because they were paid for by industry lobbyists to prop up failing business models.

    And Anonymous, I see you haven't addressed anything I said, either. So you've just proven yourself to be what I said above. Give me the information I requested if you wish to prove otherwise.

     

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  120.  
    identicon
    Anonymous Coward, Dec 24th, 2010 @ 10:40am

    RE:

    Average Joe:

    Great support, AJ. Let's see if Mike lives up to his promise that he is more than willing to admit when he's wrong. I've yet to see it.

     

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  121.  
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    average_joe (profile), Dec 24th, 2010 @ 11:46am

    Re:

    You can look up the expert's report from Fung's case and see it for yourself. I'm not here to do your homework for you.

    It's absolutely laughable how you guys defend Fung. LOL! Anything but admit he's a pirate, right? You guys are so freaking hilarious.

     

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  122.  
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    average_joe (profile), Dec 24th, 2010 @ 11:50am

    Re: RE:

    He'll never admit that Fung is a pirate. Never. It's just not possible for Mike to admit such a thing. He'll defend Fung to the grave.

    I forgot to indicate the source of those quotes I posted. They came from the district court's order granting plaintiff's motion for summary judgment: http://www.ipinbrief.com/wp-content/uploads/2010/10/Columbia-Pictures-v-Fung.pdf

     

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  123.  
    identicon
    Net neutrality much?, Dec 24th, 2010 @ 2:59pm

    IsoHunt's appeal points out how the district courts's ruling is in error. So good job quoting old news.

    You also forgot the Sony Betamax doctrine and Jack Valenti's famous quote: "I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." If those like you had your, we would have the VCR. What did you think most ppl were buying VCRs for? Recording tv shows and *gasp* fast forwarding commercials and sharing tapes with friends.

    AJ/anon, don't demand rebuttals when you don't acknowledge your opposition's arguments/ questions and pick case law that only suits you. Unless you are paid to do it.

     

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  124.  
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    average_joe (profile), Dec 24th, 2010 @ 4:07pm

    Re:

    IsoHunt's appeal points out how the district courts's ruling is in error. So good job quoting old news.

    Old news? You wish. That is the CURRENT judgment in the case. LOL! You guys are so desperate to not admit that Fung is a pirate. It cracks me up.

    I read Fung's appellate brief, and I thought it was poorly drafted and completely void of compelling arguments. You do realize the appellate court probably won't even take the case, right?

    You don't really think that because Fung's lawyer filed an appeal that it changes anything, do you? LOL! And you do realize that many of those FACTS I quoted from the order were NOT REBUTTED, don't you?

    LOL! Old news... Awesome! Would it kill any one you to admit that Fung's a pirate? You all can't be that blind, can you?

     

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  125.  
    identicon
    Anonymous Coward, Dec 24th, 2010 @ 6:51pm

    Re: Re: Re: Re: Re:

    .torrent =/= .crime

    BitTorrent is a distribution method. PERIOD.

    http://www.realitymod.com/downloads.html

    This free mod is available for download as a .torrent yet it is not infringing. There is a large amount of perfectly legal content out there using torrents as a method of distribution.

    If you think .torrent = .crime you should go stick your head back in the sand. Since the web pages that POINT to the torrent files are written in HTML, you might as well say that .html = .crime.

     

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  126.  
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    Mike Masnick (profile), Dec 25th, 2010 @ 10:03pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Hi AJ,

    I addressed many of these points when the original ruling came out:

    http://www.techdirt.com/articles/20091223/1924027493.shtml

    The comments about "stealing" were both taken out of context, and the latter one is really unfair because Fung was being legally accurate instating infringement is not stealing. Do you really think a statement that is legally accurate should be proof of inducement? The comment about leachers and such was not referring to infringement, and simply showed the judge was not aware of the basic terminology of bittorrent.

    As for linking to infringing material being infringement, I will note that the very first commenter on this thread -- someone who has repeatedly supported your position and attacked me as a pirate -- links to something that very well may be infringing material. Do you believe I should be turning his info over for inducing infringement?

    Everything else is also extremely circumstantial. Helping people figure out how to use his search engine or pointing them to software that's widely available? How is that evidence of infringement?

    You made a clear statement that he had admitted to personally downloading infringing material. Yet you failed to present evidence of that claim.

    Again, you seem to think (falsely) that I would defend Fung no matter what. That's not the case. If there was full evidence that he was engaged in copyright infringement, I would not. There may be such evidence, in fact. I'm just pointing out that you seem to be reading much more into the evidence than is there.

     

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  127.  
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    average_joe (profile), Dec 26th, 2010 @ 8:06am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    LOL! Mike, you are something else. You will absolutely defend Fung to the grave no matter how much evidence is presented to you. You do not care about what's true. That much is entirely evident.

    The comments about "stealing" were both taken out of context, and the latter one is really unfair because Fung was being legally accurate instating infringement is not stealing. Do you really think a statement that is legally accurate should be proof of inducement? The comment about leachers and such was not referring to infringement, and simply showed the judge was not aware of the basic terminology of bittorrent.

    Even if a couple of quotes were taken out of context, that does not negate the other facts. What about ALL of the other facts? Facts that were admitted to under oath. Facts that were unrebutted at summary judgment. Facts that are not challenged on appeal. Those facts, Mike. ALL of those FACTS.

    As for linking to infringing material being infringement, I will note that the very first commenter on this thread -- someone who has repeatedly supported your position and attacked me as a pirate -- links to something that very well may be infringing material. Do you believe I should be turning his info over for inducing infringement?

    Irrelevant. We're not talking about "Anonymous," Mike, we're talking about Fung. Don't change the subject. That's got nothing to do with ALL of the FACTS here.

    Everything else is also extremely circumstantial. Helping people figure out how to use his search engine or pointing them to software that's widely available? How is that evidence of infringement?

    Nonsense. Your ability to skip over all the incriminating evidence is legendary. He helped people locate, download, and burn videos that he knew to be infringing, such as Lord of the Rings, Star Trek Enterprise, Matrix Reloaded, and Pirates of the Caribbean. That is precisely the type of evidence that gets one found liable for inducement infringement. And don't forget ALL of the other FACTS.

    You made a clear statement that he had admitted to personally downloading infringing material. Yet you failed to present evidence of that claim.

    Wrong again. I posted the quote from the district court that explicitly stated this. Note that Fung did not refute this finding in his opposition to summary judgment memo, nor in his lengthy appeal. If he thought it was in error, he would have challenged it in the memo or on appeal. He did not. Explain that, Mike. And don't forget ALL of the other FACTS.

    Again, you seem to think (falsely) that I would defend Fung no matter what. That's not the case. If there was full evidence that he was engaged in copyright infringement, I would not. There may be such evidence, in fact. I'm just pointing out that you seem to be reading much more into the evidence than is there.

    OMG, are you serious? You have done nothing but prove beyond a reasonable doubt that you will defend Fung no matter what. No evidence? You have to be kidding me. I wish you were kidding me. Sadly, you are not.

    How do you explain the fact that he had categories on his front page like "box office movies." He would include a list of the current top 20 movies in the theaters at the moment, and he would include a link for each of those movies for people to upload a torrent file for each one. Sometimes when a movie wasn't getting uploaded like he wanted, he would create a separate page just for that movie trying to get people to upload it. This was admitted under oath and not challenged at summary judgment or on appeal.

    EXPLAIN that fact, Mike.

    Good grief, Mike. You are a piece of work. You clearly have zero interest in espousing the truth about Fung. Unbelievable. Truly unbelievable.

     

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  128.  
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    average_joe (profile), Dec 26th, 2010 @ 2:13pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    You made a clear statement that he had admitted to personally downloading infringing material. Yet you failed to present evidence of that claim.

    And just so you don't go saying I didn't back up my claim... From the order granting summary judgment: "In his deposition, Defendant Fung admitted to using the Isohunt website to download copyrighted broadcast television shows such as The Simpsons and Lost. (SUF, ¶¶ 2, 57, 122.) Similarly, Fung admitted to downloading the copyrighted film The Lord of the Rings: The Fellowship of the Ring. (SUF, ¶ 58.)"

    Now, just in case you don't know, "SUF" means "Statement of Undisputed Facts." As the name suggests, these are the facts that are in evidence that are not disputed. So not only am I quoting the district court, the district court is quoting the undisputed facts in the case. Add to that the fact that Fung didn't challenged this fact in his opposition brief or on appeal, and I've proved this point more than sufficiently. You simply cannot rebut this fact.

    Now that I have proved that Fung admitted that he downloaded specific infringing works, what is your reply to this proof? I'll be waiting, Mike.

    You always claim that you only believe in evidence and that you abhor faith-based claims. Yet, as far as I can tell, with Fung you are ignoring all of the evidence and you're grasping at straws. Why are you unable to just admit that he's a pirate? It appears to me that you don't know evidence when it's smacking you right in the face. If that's the case, why should we ever believe you when you claim something is backed by evidence? Do you even know what evidence is, Mike? Apparently not.

     

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  129.  
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    Mike Masnick (profile), Dec 26th, 2010 @ 3:59pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    AJ, I really wish you would avoid such excessive and insulting language in replying. It's unbecoming. Especially for someone who wishes to be a lawyer.

    LOL! Mike, you are something else. You will absolutely defend Fung to the grave no matter how much evidence is presented to you. You do not care about what's true. That much is entirely evident.

    You may believe what you want, but seriously, you don't know what I will or will not defend, and claiming to know my motivations or thoughts when you clearly do not makes you look silly.

    There are plenty of people accused of copyright infringement who I have not defended. I did not defend either Jammie Thomas or Joel Tenenbaum, both of whom I thought should have settled rather than fought.

    Why you insist that I will automatically defend all folks accused of infringement when the facts are otherwise is beyond me. It bothers me that your argument is so weak that you feel the need to make up what you think my argument is.

    Please stop that.

    Even if a couple of quotes were taken out of context, that does not negate the other facts. What about ALL of the other facts? Facts that were admitted to under oath. Facts that were unrebutted at summary judgment. Facts that are not challenged on appeal. Those facts, Mike. ALL of those FACTS.

    As far as I can tell you just repeated the same sentence over and over again in this paragraph. If the judge shows that he clearly did not understand what Fung was saying and took multiple statements out of context, it certainly raises serious questions about how the evidence was viewed.

    Irrelevant. We're not talking about "Anonymous," Mike, we're talking about Fung. Don't change the subject. That's got nothing to do with ALL of the FACTS here.

    It's incredibly relevant. The evidence cited was that linking to a torrent link that would download a potentially infringing file is evidence of infringement. I find that to be a questionable statement as it pertains to the law. That's why I'm asking. If that evidence is valid against Fung, why is it not valid against your friend?

    Nonsense. Your ability to skip over all the incriminating evidence is legendary.

    AJ, knock it off with the bogus insults. I am not "skipping over incriminating evidence." I'm asking you to stop leaping ahead and assuming the evidence says what it does not. You want to string up Gary Fung -- I get that. But I'd like for the proof to actually be considered from a level headed manner, which is why I prefer to dig into each piece of evidence.

    So far, all of the evidence seems to fall apart when you look at it closely. Statements are taken out of context. Linking to potentially infringing files seems to be evidence of infringement when you want it to be, not in other cases.

    I find that kind of biased examination of the evidence to be troubling, and suggests someone who is predecided on the issue. You have done this before. In a discussion of other sites, you have announced -- without condition -- that certain sites are "obviously infringing," despite a lack of evidence to support that.

    I would only hope that should you ever become a lawyer that you avoid such hasty bias.

    He helped people locate, download, and burn videos that he knew to be infringing, such as Lord of the Rings, Star Trek Enterprise, Matrix Reloaded, and Pirates of the Caribbean.

    Just like your friend above helped people download something he believes to be infringing. Linking to something is part of the way the internet works. I'm troubled by the idea that merely posting a link can be considered infringement by you.

    Meanwhile, there are numerous articles online about how to use different BitTorrent software and search engines -- all effectively doing the same thing that Fung did here. Do you consider those articles to be inducement?

    You have done nothing but prove beyond a reasonable doubt that you will defend Fung no matter what.

    Again, this is simply not true, and I'm not sure what you gain by repeating it, other than hoping in your head that it is true.

    How do you explain the fact that he had categories on his front page like "box office movies." He would include a list of the current top 20 movies in the theaters at the moment, and he would include a link for each of those movies for people to upload a torrent file for each one. Sometimes when a movie wasn't getting uploaded like he wanted, he would create a separate page just for that movie trying to get people to upload it. This was admitted under oath and not challenged at summary judgment or on appeal.

    This is definitely the part that I find to be most damning about what Fung did. It's about the only part of the things you've listed that seem to imply inducement of any sort. Though, it may depend on the specific text of the pages in question. Do you have that?

    Good grief, Mike. You are a piece of work. You clearly have zero interest in espousing the truth about Fung. Unbelievable. Truly unbelievable.

    Again, I would ask, with all due respect, that you drop that tone. It's unbecoming.

     

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  130.  
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    Mike Masnick (profile), Dec 26th, 2010 @ 4:04pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    rom the order granting summary judgment: "In his deposition, Defendant Fung admitted to using the Isohunt website to download copyrighted broadcast television shows such as The Simpsons and Lost. (SUF, ¶¶ 2, 57, 122.) Similarly, Fung admitted to downloading the copyrighted film The Lord of the Rings: The Fellowship of the Ring. (SUF, ¶ 58.)"

    Great. Thanks. I had not seen that part. That's all I was asking for.

    Now, I would like to ask some simple questions in response: (1) How did he know that those works were infringing? (2) How would he go about removing those works?

    Thanks.

     

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  131.  
    identicon
    artistrights, Dec 26th, 2010 @ 6:50pm

    Mike,

    With all do respect, I think you should reconsider your stance on this one. When it comes to secondary copyright liability, there are tough cases and then there are easy cases. This is not a tough case. Fung openly and willfully thumbed his nose at copyright law, and encouraged users to trade infringing files. The lower court's record is replete with evidence supporting such a conclusion.

    As you well know, in the case of secondary liability Fung need not host the infringing material himself, or even know when and where specific instances of infringement take place in order to be held secondarily liable. Indeed, that is exactly what the Supreme Court held when it found Grokster liable for inducement (See 545 US 913 at 923-24).

    To claim that Fung could/did not know that his service was being used to facilitate massive acts of copyright infringement is not supported by the district court's record. There is no evidence that once Fung learned that movies were being traded on the service (from his own use, at the very least) that he reasonably believed that the files being traded on his service were (1) licensed or (2) mislabeled. If you have evidence to the contrary, I'd like to see it.

    Furthermore, to stop the facilitation of copyright infringement, Fung should have removed the links pointing to the infringing content. Where a defendant cannot separate the infringing and noninfringing material, courts will not sustain a challenge where "the defendant entraps itself in an all-or-nothing predicament." (Napster, 114 F.Supp.2d 896).

    In my opinion, it would lend credence to your positions if you would concede that certain actions are simply not supported by our IP laws (and by Napster, Grokster, and its progeny). To dogmatically defend individuals like Fung only makes it harder to take your other points seriously.

    Respectfully,
    AR

     

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  132.  
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    Mike Masnick (profile), Dec 26th, 2010 @ 8:18pm

    Re:

    With all do respect, I think you should reconsider your stance on this one. When it comes to secondary copyright liability, there are tough cases and then there are easy cases. This is not a tough case. Fung openly and willfully thumbed his nose at copyright law, and encouraged users to trade infringing files. The lower court's record is replete with evidence supporting such a conclusion.

    That may be the case, but I would prefer that we have all the evidence in front of us before we say such things. I mean, I had no issue with the court shutting down Limewire. That one was to be expected. But IsoHunt is a somewhat different case, that I find more troubling.

    As you well know, in the case of secondary liability Fung need not host the infringing material himself, or even know when and where specific instances of infringement take place in order to be held secondarily liable. Indeed, that is exactly what the Supreme Court held when it found Grokster liable for inducement (See 545 US 913 at 923-24).

    Yes, I understand that. But I think the case of IsoHunt highlights why the Supreme Court made a serious error there, and that's what I'm trying to dig into.

    To claim that Fung could/did not know that his service was being used to facilitate massive acts of copyright infringement is not supported by the district court's record.

    I'm not saying he didn't know. I'm saying how would he know what to remove.

    Furthermore, to stop the facilitation of copyright infringement, Fung should have removed the links pointing to the infringing content.

    So, I'll ask you the same question: should I remove the first comment on this post?

    Should Google remove the links to the very same content?

    In my opinion, it would lend credence to your positions if you would concede that certain actions are simply not supported by our IP laws (and by Napster, Grokster, and its progeny).

    I have done so. As stated before, I did not agree with Jammie Thomas or Joel Tenenbaum, and thought both should have settled when they had the chance rather than fight. And I similarly felt that it was clear that LimeWire was no different than Grokster and had no chance to win its case.

    But this one is a bit more troubling, due to the search engine aspect of IsoHunt. I do not -- contrary to AJ's opinion -- automatically side with those who are accused of infringement. But this case is much more nuanced than some people like to make it out to be.

    To dogmatically defend individuals like Fung only makes it harder to take your other points seriously.

    I am not dogmatically defending him. I'm asking questions about the ruling.

     

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  133.  
    identicon
    Anonymous, Dec 26th, 2010 @ 8:50pm

    Re: Re: RE:

    Of course he won't.

    Masnick's is classic piracy apologist. What's fun is allowing him to hang himself with his own rope. He never fails.

     

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  134.  
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    artistrights (profile), Dec 26th, 2010 @ 10:00pm

    Re: Re:

    So, I'll ask you the same question: should I remove the first comment on this post?

    That depends. Are you asking if you should remove the link so as to avoid secondary liability? If so, the Supreme Court's inducement test is fairly limited and straightforward: "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." (Grokster at 936-37). If your website became a haven for infringing links and you knew of and encouraged such activity, then Techdirt could, theoretically, be held secondarily liable for copyright infringement. However, as should be fairly evident, a single post would not likely subject Techdirt to inducement liability under the Court's Grokster test.

    Should Google remove the links to the very same content?

    Perhaps. I don't know that Google is (or has been) taking affirmative steps to foster infringement by third parties, but then again, there isn't a full record before us on the matter. There is such a record in the isoHunt case, however, and as I've stated before, it's a fairly egregious case of inducement.

     

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  135.  
    identicon
    Anonymous, Dec 27th, 2010 @ 3:18am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Somewhere in the future a judge is laughing at you. Laughing at your thought that you could beat the legal system with willful blindness/ignorance.

    It's over.

    It's already been through the legal system. You have nothing to protect your piracy.

    Keep bringing it up, because I love reminding you all of it.

     

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  136.  
    identicon
    Anonymous, Dec 27th, 2010 @ 3:48am

    Re: Re: Re: Re:

     

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  137.  
    identicon
    Anonymous, Dec 27th, 2010 @ 3:51am

    Re: Re: Re: Re: Re:

    For you, yeah, as 100% of those links are infringing.

    I dare you or piracy apologist Mike Masnick to demonstrate otherwise.

    C'mom guy, get that number down to 99.9%. Just one link...

     

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  138.  
    identicon
    Anonymous, Dec 27th, 2010 @ 3:53am

    Re: Re:

    Piracy apologism: This is not your father's drug...

     

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  139.  
    icon
    average_joe (profile), Dec 27th, 2010 @ 7:32am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Great. Thanks. I had not seen that part. That's all I was asking for.

    Now, I would like to ask some simple questions in response: (1) How did he know that those works were infringing? (2) How would he go about removing those works?

    Thanks.


    Such a silly game, Mike.

    He admitted they were infringing. How did he know? I dunno, Mike. Maybe because it was obvious. If there was any doubt, why would he admit they were copyrighted while under oath?

    How would he remove them? He would go into his service and remove the file. And yes, Mike, he would remove the dot-torrent file. How else?

    Your need to exculpate Fung screams of desperation to me.

     

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  140.  
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    average_joe (profile), Dec 27th, 2010 @ 7:43am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    I know when you start bringing up my being in law school it means you have nothing.

    "All of the evidence seems to fall apart when you look at it closely"? Utter faith-based bullshit.

    Weren't you the one who didn't even know that Fung admitted to using his own service to download files that he knew to be infringing? Good grief, I got that fact from a document that you yourself uploaded: http://www.scribd.com/doc/24472378/Case-2-06-Cv-05578-Svw-Jc

    I have zero faith that you are looking at the evidence here, Mike. Why should anyone trust your analysis here? Too much of it's faith-based to be taken seriously. This hurts your credibility in general, I'm sorry to say.

     

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  141.  
    identicon
    Anonymous Coward, Dec 27th, 2010 @ 2:09pm

    Re: Re: Re: Re: Re:

    Total 100.03%
    "while 890 files were confirmed to be illegal"
    I put it that out of 1,000 files "randomly selected" using a movie title for example, up to 90% of these files would be fakes, requiring users to download trojan infected "players", or even being old porn video.

    To actually confirm that 890 files were illegal, apart from their name, would require the complete download of eacg file to even confirm the file was in fact the same as the title.

    The use of "seeders" in itself should not be used for factual data in a report, and most of the top seeded files are fakes, seeder and leech counts can easily be faked, and often are.

    Also on Gary Fung's defence is the fact that there are still many countries where the downloading of copyrighted material is NOT illegal. Canada being one of those. Mr. Fung did not download the television shows in the U.S.A. so technically he did not commit an offence.

    isoHunt.com site is not a tracker, it is a search engine and has an attached forum. isoHunt is also proud to promote CC and other type files that are freely available for no charge to the public.

    I have noticed posters here that have posted on other sites, heatedly debating the same copyright subjects, almost as if their job depended on it.. or maybe it does?

    The MPAA maybe able to buy themselves protection in the USA and even have "homeland security" as their heavies. But despite their efforts a lot of the world is still free to decide for themselves what they want to do with their freedom.

     

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  142.  
    identicon
    Anonymous, Dec 27th, 2010 @ 7:04pm

    "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."

    Exactly. Posting the link so as to demonstrate conclusively that infringing activity was taking place elsewhere, fails that test.

    But Masnick knows that. His MO from here on out is obvious: willful ignorance/blindness. Because he's a piracy apologist.

     

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  143.  
    identicon
    TDR, Dec 28th, 2010 @ 9:21am

    Anonymous & AC, I'm still waiting for my answers. Or your complete retractions of everything you have ever said on this site. Provide them. Now.

     

    reply to this | link to this | view in thread ]


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