US Court Finds isoHunt Liable for Copyright Infringement

Judge calls the BitTorrent tracker site “old wine in a new bottle,” says entertainment industry has provided “undisputed evidence of specific infringing acts done in the United States.”

Just in time for the holidays the entertainment industry was given a sizable present by US District Judge Stephen V. Wilson.

He found that owner, operator Gary Fung and his BitTorrent tracker site isoHunt had infringed copyright and intentionally encouraged piracy, stating that the “evidence of defendants’ intent to induce infringement is overwhelming and beyond reasonable dispute.”

“The court’s decision establishes a powerful precedent that makes clear, once again, that website operators must respect the rights of content owners and control infringement on their websites, or face liability for their actions,” said MPAA vice president Daniel Mandil in a statement.

The ruling comes three years after proceedings were first opened against Fung.

Throughout the battle he has argued that his BitTorrent portals were comparable to Google in that they simply enabled users to find content. Fung’s lawyers argued that he could not be liable as he did not host any copyright infringing content himself.

Specifically, he centered his defense around three main arguments: first, that BitTorrent technology is different from the other technologies because users do not download content files from one another and not via the site itself; second that users’ conduct is protected by the First Amendment; and third, the fact that users are located around the world, and not just in the US, meaning that any ruling would affect their rights as well.

On the first argument the judge calls it “nothing more than old wine in a new bottle.” Here the judge doesn’t seem to have a full grasp of the technology at hand because he considers BitTorrent to be merely an improvement of earlier Grokster-type Direct Connect-style P2P.

The ruling reads:

Instead of logging into a proprietary network in order to download files from each others’ computers, Defendants’ users access Defendants’ generally-accessible website in order to download those files. And instead of downloading content files directly through Defendants’ website, Defendants’ users download dot-torrent files that automatically trigger the downloading of content files. These technological details are, at their core, indistinguishable from the previous technologies. In fact, Defendants’ technologies appear to improve upon the previous technologies by permitting faster downloads of large files such as movies. Such an improvement quite obviously increases the potential for copyright infringement.

But, BitTorrent really is “new wine.” The site doesn’t host any copyrighted material and should be protected by the DMCA as are other search engines like Google and Bing.

Fung’s second defense, First Amendment protection, is dismissed outright by citing established caselaw.

As for the third, the Judge says it doesn’t matter because the fact is that “millions of United States citizens have accessed Defendants’websites, and a substantial proportion of the files made available to them through those websites contained copyrighted or highly-likely copyrighted works.”

“Further, Plaintiffs have provided undisputed evidence of specific infringing acts done in the United States.” he adds.”

Probably the most damaging evidence used against Fung is the fact that isoHunt lists what the most popular downloads are in different categories, meaning he is well aware of copyright infringement by users and failed to stop it.

“Defendants designed the websites and included a feature that collects users’ most commonly searched-for titles,” says the Judge. “The fact that these lists almost exclusively contained copyrighted works and that Defendants never removed these lists is probative of Defendants’ knowledge of ongoing infringement and failure to stop this infringement.”

What also hurt Fung’s case is Fung himself for having made repeated damaging statements to his cause.

“Morally, I’m a Christian. ‘Thou shalt not steal.’ But to me, even copyright infringement when it occurs may not necessarily be stealing,” ,” reads the ruling, citing an interview Fung gave with another website.

Fung’s attorney, Ira Rothken, says they may appeal the ruling, and it remains to be seen what effect, if any, it will have on the site being it’s not hosted in the US.

“We do think from our preliminary review there are a number of issues for appeal,” Rothken told Wired.

Stay tuned.

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