TorrentFreak is noting that Google has, perhaps for the first time, waded into any of the lawsuits concerning torrent search engines, filing an amicus brief in the ongoing IsoHunt appeal. In the past, other torrent search engines have been somewhat upset that Google has stayed quiet, noting that many of the arguments used against them could equally apply to Google. Google, of course, has stayed away because it goes to great lengths these days to avoid any appearance of "supporting piracy."
While TorrentFreak (and IsoHunt) seems surprised or disappointed by Google's actual amicus brief in the IsoHunt case, it's really not surprising. Google's participation here is entirely about the YouTube/Viacom lawsuit and appeal. What was really notable about the original IsoHunt ruling, was that it was the only real legal ruling that said that you could violate the DMCA even in absence of takedown notices. That is, it highlighted the idea of "red flag" awareness of infringement. This was the key issue in the YouTube/Viacom lawsuit. Google argues that as long as YouTube took down any content it received a takedown notice on, it was in compliance and protected by safe harbors. Viacom leaned heavily on the IsoHunt ruling, to claim that the DMCA doesn't just cover takedown notice responses, but also requires a response to "red flag" infringement.
However, Google knows that the IsoHunt ruling is basically the only legal precedent out there that reads the DMCA in this manner. So, from Google's perspective, dumping that reasoning is key. So its amicus brief still argues that IsoHunt is guilty of contributory infringement, a la the Grokster standard, but not because of red flag infringement. So, I don't find it that "unexpected" that Google got involved, or filed the brief that it did. It's focused entirely on its own lawsuit here, and hoping that the appeals court will take away the one serious case that Viacom has in its pocket for the YouTube appeal.
Michael Geist has the news that last year, at some point, the recording industry filed a lawsuit against IsoHunt in Canada. There's already been an ongoing lawsuit against IsoHunt in the US, but not too many people realized there was a similar lawsuit in Canada. And that's for a specific reason: the recording industry did their best to keep it quiet. The lawsuit was filed just a few weeks before Canada's latest attempt at copyright reform was put forth and a big part of the narrative for why such a law was needed was because Canadian copyright laws weren't strong enough to go after a site like IsoHunt. So, making a big stink about a lawsuit -- under those existing copyright laws -- against IsoHunt would have hurt that story... Of course, this raises the question: if existing copyright laws were strong enough, why did politicians and industry lobbyists claim they were not?
This one is a bit odd and unexpected. We recently reported on how grandstanding New York Attorney General Andrew Cuomo had kicked off a new project that would create a database of child porn, and offer up hashes to any website that wanted to use it to block such content from being uploaded. While the general concept seemed good, it wasn't clear how this database was being generated, or if there were safeguards in place to make sure that the list really only included illegal images. Either way, it appears that Cuomo has welcomed with open arms a surprising company who wants to use the database: IsoHunt. Yes, the torrent search engine in the midst of a legal battle for its survival has agreed to use the hash database to prevent access to such images via its system.
Considering that Cuomo thrust himself in the middle of the file sharing debate by supposedly trying (and failing) to broker backroom deals with ISPs to get them to embrace three strikes policies, it seems a bit surprising that he would embrace a site like IsoHunt. That said, it seems that he appears a lot more interested in getting publicity over child porn issues rather than copyright. As for IsoHunt, this also appears to be a pretty calculated move. Part of the site's legal argument is that the judge's demand to filter by keyword is way too broad, and it has argued that a similar hash database would make more sense. So, it's no surprise that IsoHunt wasted little time in letting the judge know about this new deal.
Given similar rulings, and the judge's comments so far in the IsoHunt case, I find it quite unlikely that the company has any chance of getting out from under the injunction issued against it. However, IsoHunt's lawyer, Ira Rothken (who has been involved in a few similar lawsuits), is trying to make the case that the current injunction is way too broad and a violation of the First Amendment. The argument is that the injunction bars certain searches, telling Isohunt operator Gary Fung that he cannot allow searches for certain movie titles, such as Alice in Wonderland. But, Rothken points out, the movie studios don't own that name. They may own a particular movie under that name, but using that to block all searches on the name goes beyond what the law allows:
One issue concerns how Fung should remove searches from his three search engines: Isohunt, Torrentbox and Podtropolis. The Motion Picture Association of America, which brought the case, has sent keyword searches it wants removed, like the number 10, Alice in Wonderland and Dracula, Rothken said.
"One person's copyrighted Wizard of Oz is another person's public domain work," Rothken said in a brief telephone interview Tuesday. He said the movie studios should provide URLs or hashes, which would positively identify which search link should be removed.
"The motion picture studios do not have a monopoly on names on things. That is where the injunction is violating the First Amendment," he said.
I'm sure that copyright system defenders will brush this off as being a pointless exercise, but he's actually got a very reasonable point. Asking for blocks on names alone seems to go well beyond what the law is supposed to allow. It's yet another example of the difference between real copyright law and file sharing copyright law. Copyright law does not allow for a block based on just a name. But, apparently "file sharing copyright law" does. And that's a problem, if you actually believe in the rule of law and interpreting the law accurately.
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
(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:
This really is not a huge surprise, but in the IsoHunt case the judge has now ordered site operator Gary Fung to magically stop anyone from infringing (Update: as noted in the comments this is just a "proposed" order, but it seems likely that this is where the judge is heading). It is, as Fung notes, effectively a shut down order. There's no legitimate way for Fung to magically know what content is infringing and what is not, since his system is really no different than a search engine. While the original ruling concerned a few of Fung's actions that the judge claimed were inducing, it looks like the judge won't even give Fung a chance to try to set up a non-inducing search engine.
There are some odd statements in the ruling, including the judge claiming:
"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,"
There's just one (big) problem with that. It is not at all axiomatic. We've seen many content creators embrace file sharing as part of a legitimate market, and in doing so, make more money. So the judge is claiming something that is a universal truth that is false. That seems quite troubling.
Separately, the ruling seems to suggest that a keyword filter might stop the infringement. That takes me back. Judge Patel in the original Napster case made the same demand, and it was a disaster, because a keyword filter is useless.
But the bigger issue is that the judge seems to have gone way beyond what the law actually says and allows in this situation. The site can be barred for inducing infringement, but that doesn't mean a site automatically must block anything that might be infringing.
One result of the Supreme Court's ruling in the Grokster case, five years ago, was formalization of the concept of "inducement" of copyright infringement as being against the law itself -- despite the lack of any such concept in the statute, and a failure (despite repeated attempts) by Congress to put an inducement standard directly into the law (suggesting, pretty clearly, that Congress did not intend for there to be an inducement standard in copyright law). Now, the entertainment industry has stretched the Grokster ruling for years, pretending that the Supreme Court actually said simply that any file sharing program/site was violating copyright law. But that's not true at all. What's unclear, however, is what constitutes inducement and what doesn't. Given various court rulings on the subject, it seems like you could set up a perfectly legal file trading system/search engine that doesn't run afoul of the law by making sure that it wasn't designed to induce infringement at all.
Unfortunately, pretty much every file sharing system/search engine that's gone to court in the US has failed that test miserably by regularly pitching its product for the purpose of infringing on copyright law. In a recent ruling, concerning the torrent search engine IsoHunt, we noted that the judge found inducement in a variety of places in how the site was operated and (more importantly) in comments made by the site's owner, Gary Fung.
The court relies on the fact that IsoHunt owner Gary Fung made many statements that could be read as inducing infringement, but most of the statements appear to have been taken out of context. In fact, it looks like the court interpreted any time Fung mentioned "stealing" to mean support for copyright infringement, even if the words he stated were actually suggesting something different. For example, the court cites the following statement by Fung:
"Morally, I'm a Christian. 'Thou shalt not steal.' But to me,
even copyright infringement when it occurs may not necessarily be
The court seems to think this indicates inducement, but if that's the case, then shouldn't the Supreme Court itself be guilty as well for famously stating in the Dowling case:
"(copyright infringement) does not easily equate with theft, conversion, or fraud... The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over copyright; nor does he wholly deprive its owner of its use."
If the first is inducement, isn't the latter as well? Furthermore, the court seems to take a quote that refers to "stealing from leechers" to mean inducing infringement, apparently not recognizing that leechers have a very specific meaning in the BitTorrent world, and the statement appears to have nothing to do with infringing on copyright.
That said, there are some other things that put Fung on much thinner ice, including helping people find certain files and helping explain how trackers work -- though, again, it's not clear that Fung would know for certain that the files being searched for were infringing. The court does find it (reasonably) damning that Fung presented a list of top box office films, with links to pages that asked people to share torrent files that pointed to the films themselves. You can certainly see how that could trigger the "inducement" finding.
But what may be most interesting (or troubling, depending on your perspective) is the court's discussion on the DMCA, which basically says that DMCA safe harbors do not apply if it can be shown that the site turned a blind eye to infringement. If that reasoning is used, it could eventually implicate sites like YouTube, despite rulings like the one in the Veoh case. Expect IsoHunt to appeal, though given the details in the case, it seems quite unlikely that it will prevail. There are too many precedents against this sort of operation, even if the court misinterpreted Fung's statements, which it deems as "most telling" in the ruling.
While some continue to insist that there's nothing good or legal that comes from file sharing sites, many content creators who have embraced those sites have found them to be wonderful tools for distribution and promotion. Now, it looks like a bunch of them are teaming up to do even more. Mininova, The Pirate Bay, isoHunt, Miro, Vuze and Frostwire have all agreed to work with a new project called Vodo, which will help promote indie films. Filmmakers can offer their films through Vodo and get promoted on the various file sharing sites -- and the system is designed to let people easily donate. While I'm not a huge fan of a pure "donation" business model, it should be interesting to see how Vodo evolves over time. Certainly, it could be a valuable tool to indie filmmakers who recognize that obscurity is a much bigger threat to their efforts than piracy.
This is a first. In the trial that the movie studios have brought against torrent search engine Isohunt, the judge has pushed back on the MPAA's claims, noting that it has failed to show any evidence of actual infringement by US users. In the past, groups like the MPAA and the RIAA have been able to get by without ever proving real infringement, but just by suggesting it must be happening. So this is quite a surprise. It makes the Isohunt case one to watch more seriously. The company may still lose the lawsuit, but at least the judge seems to want to see actual evidence, rather than having Hollywood execs insisting that these sites are killing their business just because they say so.