As Expected, Judge Issues Injunction Against IsoHunt For Not Finding Magic Wand

from the fantasy-legal-land dept

Well, here we go again with the difference between real copyright law and "file sharing copyright" law. Just as a court in the southern district of California has suggested that Rapidshare is not liable for infringing activities of its users, a court in the central district of California has come down hard on Isohunt, demanding the site wave a magic wand and delete all infringing links. Of course, since we don't live in fantasy land where that's possible, it basically means the site needs to be shut down. As with the original ruling against Isohunt, however, it appears the judge doesn't quite understand the technology at play, and ascribes to Isohunt functionality that it has nothing to do with. For example:
Second, given the way in which Defendants' system works, when Defendants' end-users download one of Plaintiffs' works, the end-users automatically and simultaneously further distribute the work to innumerable others as a required part of the download process; additionally, at the conclusion of the download, Defendants' end-users obtain an unprotected digital copy of Plaintiffs' work that those end-users can further distribute indefinitely at will.
But, uh, that's how BitTorrent works. Not IsoHunt. I don't quite see how it makes sense to blame IsoHunt -- which is basically a search engine -- for the activities done by its end users and the technology of BitTorrent. The court also takes it as fact that the availability of unauthorized free copies must harm the market, despite no evidence to back that up. It's faith-based rulings, based on Hollywood (on the heels of its best box office year ever) making claims with no facts, that the judge just accepted:
It is axiomatic that the availability of free infringing copies of Plaintiffs' works through Defendants' websites irreparably undermines the growing legitimate market for consumers to purchase access to the same works.
But that's wrong. It may cause harm, but it's hardly irreparable. If the movie studios actually, you know, adapted to the changing market (as some are figuring out), they could actually do much better. Why does the judge suggest otherwise with no proof at all?

Finally, the court continues to live in the same fantasy land as the entertainment industry in thinking this injunction will actually slow down or prevent any file sharing:
Finally, the Court agrees that the public interest will be served with a permanent injunction, since it will protect Plaintiffs' copyrights against increased and unrestrained infringement.
Except, of course, it will do no such thing. Instead, those users will disperse to other sites, perhaps the same ones that the entertainment industry just helped advertise.

Finally, the actual injunction is incredibly broad and amounts to -- as mentioned -- demanding that IsoHunt and Gary Fung develop a magic wand to figure out if a link points to infringing material:
Defendants shall be permanently enjoined from knowingly engaging in any of the following activities in connection with the Isohunt System or any Comparable System:

(a) hosting, indexing, linking to, or otherwise providing access to any Dot-torrent or similar files that correspond, point or lead to any of the Copyrighted Works;

(b) assisting with end-user reproductions or transmissions of any of the Copyrighted Works through a tracker server, or any other server or software that assists users in locating, identifying or obtaining files from other users offering any of the Copyrighted Works for transmission; or

(c) hosting or providing access to any of the Copyrighted Works.
This is not to say that Fung is blameless. Clearly, IsoHunt did some things that looked quite bad under the law. But that doesn't excuse some of this ruling, which seems to go to ridiculous levels, way beyond what copyright law allows. None of this is a surprise given the earlier ruling or the proposed injunction, which included much of the same troubling language (including the bogus "axiomatic" statement). This isn't to defend Fung or IsoHunt at all. But I do worry when judges get so hung up on how bad a site like IsoHunt must be that they make rulings that will cause trouble down the road for others. Below is the full ruling if you want to read through it:
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Filed Under: bittorrent, copyright, file sharing, gary fung, infringement
Companies: isohunt

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  1. identicon
    Darryl, 21 May 2010 @ 5:30pm

    Aid and Abet

    "To assist another in the commission of a crime by words or conduct".

    The person who aids and abets participates in the commission of a crime by performing some Overt Act or by giving advice or encouragement.
    He or she MUST SHARE the criminal intent of the poerson who actually commits the crime.

    But it is not necessary for the aider and abetter to be physically present at the scene of the crime.

    An individual is complicit in a crime if he/she is aware of its occurrence and has the ability to report the crime, but fails to do so.
    Such an individual effectively allows criminals to carry out a crime dispite possibly being able to stop them, either directly or by contacting the authorities, thus making the individual a de-facto accessory to the crime rather than in innocent bystander.

    "But that's wrong. It may cause harm, but it's hardly irreparable. "

    It does cause harm, and it is irreparable, if someone downloads a song or movie, we all know they are not going to then go and buy a commercial copy of the same work.

    And we all know that instead of buying to CD or going to the movie, people will opt to download it instead.

    At hit movie, does not remain a hit forever, so a lost sale when it is popular is a lost sale forever.

    As for claiming dumb on not knowing what is in breach of copyright and what is not, that is a copout, if youre not sure you dont include it.

    There is little or no differentiation from someone who goes to a web site and downloads files. They click on a link they are not sure, or rarly care if that link is an internal link to the file, or an attaching link to some torrent portal.

    As far as the downloader is concerned, he goes to THAT web site, and downloads the files he wants.

    What you're saying is that there should be a loop hole for internet file sharers, that has something to do with what happens when you press the "download" button. And the Courts have found that this is not the case, and there is no such loop hole.

    So in this case it looks like they are just going to have to abide by the existing laws, like the rest of us.

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