Judge In IsoHunt Case Tells MPAA It Needs To Actually Prove Infringement By US Residents

from the well,-that's-a-first dept

Thu, Aug 27th 2009 6:09am — Mike Masnick

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.

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Filed Under: bittorrent, copyright, file sharing, infringement, proof
Companies: isohunt, mpaa

63 Comments

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Ima Fish (profile), 27 Aug 2009 @ 6:13am

Actual proof in a copyright case? What the frick?! The judge will probably be disbarred within a week!
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Anonymous Coward, 27 Aug 2009 @ 6:23am

Re:
Naw, the judge will end up in Gitmo for supporting terrorism. Because it's a known fact that terrorists profit from piracy!
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John (profile), 27 Aug 2009 @ 6:35am

Wow
A judge not drinking the kool-aid? Incredible
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Lucretious, 27 Aug 2009 @ 6:40am

I think ISO Hunt is actually an aggregator.
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Anonymous Coward, 27 Aug 2009 @ 6:42am

Here come da judge
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Anonymous Coward, 27 Aug 2009 @ 6:46am

Re:
yeah, it assists those who assist those who infringe.
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Dark Helmet (profile), 27 Aug 2009 @ 6:49am

Re: Re:
Like Google?
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Anonymous Coward, 27 Aug 2009 @ 6:53am

All the have to do is point at Jammie and Joel - proof that actual infringement does occur. NEXT.
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Free Capitalist (profile), 27 Aug 2009 @ 7:02am

Re:
"All the have to do is point at Jammie and Joel - proof that listening to crappy music does occur. NEXT."

FTFY
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Shawn (profile), 27 Aug 2009 @ 7:03am

Re:
So I can put you in jail for stealing shit out of my house by proving that people do steal shit out of peoples houses?
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Richard, 27 Aug 2009 @ 7:04am

Re: ll the have to do is point at Jammie and Joel
But they didn't use ISOhunt -

so "being a bit similar to someone who assists infringement" is enough is it?
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Dark Helmet (profile), 27 Aug 2009 @ 7:13am

Re: Re:
"So I can put you in jail for stealing shit out of my house by proving that people do steal shit out of peoples houses?"

Look, we all know that houses are where Breaking and Entering occurs. Hell, they even assist with the breaking and entering by pointing these criminals to a DOOR?

Also, vehicles are where Grand Theft Auto occurs, same problem with doors.

Vaginas and buttholes are where rape occurs.

And streets allow people to Jaywalk.

So, the solution is simple: outlaw IsoHunt, houses, vehicles, streets, vaginas, and buttholes, and we'll be all squared away...
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RD, 27 Aug 2009 @ 7:16am

About damn TIME!
It's about damn time SOMEONE in the corrupt judiciary exhibited some form of a CLUE. Pointing (linking) is NOT ILLEGAL (yet). Google still needs to be sued a'la TPB because they do the SAME THING. Of course, the *IAA's of the world wont go NEAR a lawsuit against the big G, because they KNOW linking isnt infringement and the big G has the resources to bury them in court about it. So they pick on everyone else that has the same (in principle) system to set precedents and get big headlines.
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Shawn (profile), 27 Aug 2009 @ 7:23am

Re: Re: Re:
But if we eliminate all of these things, who will we send to the vivisectionist?
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Anonymous Coward, 27 Aug 2009 @ 7:49am

Re:
"All the have to do is point at Jammie and Joel - proof that actual infringement does occur. NEXT."

Wouldn't they have to prove that they used IsoHunt specifically to get the torrents that they used to download and share music? Never followed those cases, but I doubt anyone specifically said, "they were using IsoHunt!"
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Anonymous Coward, 27 Aug 2009 @ 8:03am

Re: Re:
Stop using logic ffs!
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Anonymous Coward, 27 Aug 2009 @ 8:13am

Specialism v. General
"how is this different than what Google offers"

Isohunt is a specialist site where the majority of the service is dedicated to one or two topics. Google is a general service that allows people to find content covering numerous topics.

I am pretty sure that lots of stuff has fallen through Google's filters and it has links to torrents etc. but the proportion is tiny compared to everything else.

Google is also a passive aggregator whereas Isohunt is actively adding value to the otherwise tedious process of finding specific torrents.
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Anonymous Coward, 27 Aug 2009 @ 8:13am

Re: Re:
Doesn't matter - they were using P2P protocols, showing that illegal file sharing does exist (and people have been guilty of it) using the exact same technology and systems, etc. They are guilty in a court of law, it is proof that file trading exists under these systems.

I would suspect that a good lawyer could find the same music files on ISO Hunt in some manner, and that would be enough of a connection :)

As a side note, a good lawyer would only have to have a third party log into ISOHunt, select a torrent, download it, and install it to show that infringing occurs. Heck, he could even instruct the judge on how to do it himself.
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John, 27 Aug 2009 @ 8:16am

Finally
A judge with common sense. the RIAA to date has not shown one shread of proof that they (their clients they represent - the music industry meaning really the lables) have suffered any actual monetary damages. The lables own executives on the stand said they don't know of any monetary damages, or don't know what they would be.

Maybe this will send a message that you just can't imply someone did something in a law sut and you have to show there was an actual loss, just like you or I would have to do if we sued someone.
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Esahc (profile), 27 Aug 2009 @ 8:24am

Re: Re: Re:
"As a side note, a good lawyer would only have to have a third party log into ISOHunt, select a torrent, download it, and install it to show that infringing occurs. Heck, he could even instruct the judge on how to do it himself."

Can you please explain how ISO hunt dose this? I've used ISO hunt in the past and I can assure you that they don't host any of the files. In fact this is how ISO hunt works: see Google.

The link to links that may or may not have infringing content.
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deadzone (profile), 27 Aug 2009 @ 8:31am

Interesting...
This will definitely be one to watch.

Proof of infringement is going to be a really tough thing to show for the MPAA. Considering the burden of proof has never before been applied to the MPAA/RIAA and considering that they pretty much have balked at any attempt to provide proof in the past, it should be really interesting and entertaining to watch how this plays out.
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Brian (profile), 27 Aug 2009 @ 8:32am

Re: Re: Re:
Exactly!
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Anonymous Coward, 27 Aug 2009 @ 8:33am

Re: Specialism v. General
Nothing in the law states that there is a threshold for the percentage of illegal content you are allowed to point to.

If 1% of the content Google indexes is illegal, and pointing to illegal content is against the law, then Google is running an illegal business. Period.
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Judsonian, 27 Aug 2009 @ 8:37am

Re: Specialism v. General
And you can us the "Generalized" search in Google to find all sorts of other cool stuff .... like how to cook meth, make a pipe bomb, or combine normal kitchen chemicals to make explosives. Yes Google is so much different than ISOHunt.
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interval, 27 Aug 2009 @ 8:42am

"Proof of infringement?" What's next? Asserting Habeas Corpus? TRIAL BY JURY OF ONES PEERS? Have the proles gone insane??
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think about it, 27 Aug 2009 @ 8:58am

Re: Re: Re: Anonymous Coward
That only shows it COULD occur, not that it DOES.

cheers
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Anonymous Coward, 27 Aug 2009 @ 9:10am

Re: Re: Specialism v. General
The phone book will allow you to locate businesses that sell lab equipment, pharmaceuticals, chemicals etc. but this is fundamentally different to a website that called "methcook.com" that aggregates all of these isolated innocent pieces of information in such a way as to be mainly of interest to people who want to cook meth.

The judge in this case is trying to determine whether the site was specifically designed to improve access to a particular kind of content and (the crucial part of the story) whether in doing so had been complicit in subsequent illegal activity in a jurisdiction over which the court has power.
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Chronno S. Trigger (profile), 27 Aug 2009 @ 9:12am

Re: Re: Specialism v. General
If it's illegal for ISO hunt to search other sites that host torrents and link to them, what if I use Google to search for ISO hunt?

Is OVguide illegal because it can link to infringing content on youtube? Is it also illegal to use Google to search for OVguide?
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Chronno S. Trigger (profile), 27 Aug 2009 @ 9:19am

Re: Re: Re: Specialism v. General
"complicit in subsequent illegal activity in a jurisdiction over which the court has power."

Are you absolutely sure about that? Are you saying that I can't teach anyone how to pick locks because it's illegal to pick locks in my state? Are you saying that I can't teach anyone that taking a jug + gas + rag = crude incendiary device because it's illegal to make those crude incendiary devices?
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Anonymous Coward, 27 Aug 2009 @ 9:36am

Re: Re: Re: Re: Specialism v. General
"I can't teach anyone that taking a jug + gas + rag = crude incendiary device because it's illegal to make those crude incendiary devices?"

You forgot the + government building or + your ex wife or + your bosses expensive car.

It's the end intent. Anyone with half a brain (which covers most of the people here) knows that ISOhunt has one major purpose, distribution of copyright material. It's the standard point, if you removed all the copyright material, would anyone use it? Nope.

It's like gun + bullets = weapon, while gun + bullets + address + $500 = conspiracy ;)
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How Old Are You, 27 Aug 2009 @ 9:49am

Re: Re: Re:
Really how twisted and demented are you? Vaginas and buttholes?
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Chronno S. Trigger (profile), 27 Aug 2009 @ 9:50am

Re: Re: Re: Re: Re: Specialism v. General
"ISOhunt has one major purpose, distribution of copyright material."

One, all material is copyrighted.

Two, not all copyrighted material is illegal to download.

Three, ISOhunt's intent is to search torrents not to distribute anything.

"if you removed all the copyright material, would anyone use it?"

Oh, hell yes they would. It's a damn good way to get data to people quickly.

Oh, for the record, just creating a crude incendiary device will land your ass in jail, just like owning lock picking tools (pro or improvised) or picking your own lock. No intent needed.
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deadzone (profile), 27 Aug 2009 @ 9:58am

Re: Re: Re: Re: Re: Specialism v. General
Then the burden is on the MPAA/RIAA to prove it with actual proof rather than using a series of generalizations to prove that infringement "might of happened" or "could of happened" or "very likely happened" as is the case most of the time.

To be honest, the idea that a non-physical COPY of anything is worth this much seems sort of ludicrous. No loss of any type has occurred, nothing physical has changed hands, no sale has been lost, nothing has been stolen, in fact, nothing has really happened other than someone has shared a digital file with someone else.
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PRMan, 27 Aug 2009 @ 10:04am

Re: Re: Specialism v. General
"If 1% of the content Google indexes is illegal, and pointing to illegal content is against the law, then Google is running an illegal business. Period."

Only in technology. In law, the 99% legal company will fare much better than the 99% illegal company, because if 99% of your stuff is illegal, it's hard to say it wasn't your intention.

Unlike TPB, ISOHunt does act on takedown requests all the time.
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Dark Helmet (profile), 27 Aug 2009 @ 10:07am

Re: Re: Re: Re:
Very and very...thanks for asking.

As for how old, I'll just call it just shy of 30...
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Ryan, 27 Aug 2009 @ 10:17am

ISOHunt
ISOHunt is my favorite of all the search engines, I get 90% of my stuff from them.
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interval, 27 Aug 2009 @ 10:30am

Re: Re: Re: Re: Re: Re: Specialism v. General
Simply owning lock picking tools is illegal? I'm going to need proof of that...
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interval, 27 Aug 2009 @ 10:32am

Re: Re: Re: Re: Re: Re: Re: Specialism v. General
Chrono So-on and so-so:

On the Ownership of Lock Picking Devices:

United States:

In United States, laws concerning possession of lockpicks vary from state to state. Generally, possession and use of lockpicks is considered equivalent to the possession of a crowbar or other tool that may or may not be used in a burglary. Illegal possession of lockpicks is generally prosecuted as a felony under the category of possession of burglary tools or similar statutes. However simple possession is completely legal as state statutes all require proof of intent.

In California, locksmiths must be licensed by the state. However simple possession is completely legal as illegal possession must be coupled with felonious or malicious intent.

European Union:

Most countries of the European Union don't regulate the possession of lockpicks. All responsibility concerning criminal or legal acts using the picks is taken by the owner of the lockpicks.

In the Netherlands, owning lock picks is legal, but using them on someone else's locks without permission is not. There is even a lock picking championship, the Dutch Open, which was reported on in the newspapers.

In United Kingdom, a person who carries a lock pick set (even a home made one) can be charged with the offence of "going equipped", unless they have a good reason for carrying them. The penalty for this can be upward of 5 years' imprisonment.
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Anonymous Coward, 27 Aug 2009 @ 10:45am

The problem with a lawyer downloading to show it happens is.. that's been tossed out as not being proof of illegal activity(can't remember the case). The lawyer does it with full willing support of his client(RIAA MPAA), so no illegal activity happened. For it to be evidence actual real bad goings on had to have happened, and they have to have proof of it. Not just showing a theoretical proof of how it could happen.
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Anonymous Coward, 27 Aug 2009 @ 10:45am

Circumstantial evidence should be sufficient
This will never hold up. Very few issues cannot be proven by circumstantial evidence and require actual evidentiary facts. While the commenters above seem to think the judge is being sensible, what actually happened is that a preponderance of evidence is insufficient, we need actual proof. This is lower standard than serious crimes like murder and rape which are convicted often based solely on circumstantial evidence. Copyright is not nor should be some bizarro world divorced from the rest of the law. This also would encourage suing the users like Tenenbaum first to get the evidentiary proof on the record before going after indirect infringers.
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Cyanid Pontifex (profile), 27 Aug 2009 @ 11:05am

Re: Re: Re:
Jamie Thomas used kazaa to share her music, which is an entirely different type of P2P with no relationship to ISOhunt. Tenenbaum used a variety of different methods to acquire his music, none of which are proven to have been over torrents.

Your argument fails.
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Anonymous Coward, 27 Aug 2009 @ 11:21am

Re: Re: Re: Specialism v. General
"Unlike TPB, ISOHunt does act on takedown requests all the time."

and this is the main thing that makes them legitimate. We certainly shouldn't expect them to be able to delete EVERY single infringing material instantly but if they make a reasonable effort and do a reasonable job at removing infringing material then we also shouldn't artificially make the cost of these services more expensive because they don't do a 100 percent perfect job at removing everything right away.
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Anonymous Coward, 27 Aug 2009 @ 11:22am

Re: Re: Re: Re: Specialism v. General
IOW, we should do away with copyright and intellectual property before we, as a society, allow it to destroy or artificially raise the cost of perfectly good information distribution systems.
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deadzone (profile), 27 Aug 2009 @ 11:38am

Re: Circumstantial evidence should be sufficient
I don't think so. What the RIAA/MPAA purport to be "evidence" doesn't even qualify as Circumstantial Evidence in the real world.

The fact of the matter is that they have no proof or evidence at all to back themselves up with. If they are forced to prove infringement has occured using actual evidence then they will lose.
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Different Mike, 27 Aug 2009 @ 12:13pm

Re: Circumstantial evidence should be sufficient
Regarding Anonymous Coward's (read: Corporate Shill) comment saying that circumstantial evidence should be sufficient because it is in other cases:
Circumstantial evidence is not sufficient in other cases as you say. Evidence presented in court that is circumstantial is nearly always successfully objected. The rule of law is that guilt must be proven "beyond a reasonable doubt". Talk to any District Attorney and they will tell you that they spend a lot of their case preparation time making sure that the case proves guilt beyond that reasonable doubt.
I see no reason why the same standard shouldn't apply for copyright infringement.
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batch, 27 Aug 2009 @ 12:28pm

Re: Re: Re:
You are a tool.

I own guns. Guns have been used to hurt people. By your logic, the mere possession of such a thing means I hurt people. Too bad my criminal record doesn't reflect your awe inspiring Sherlock abilities. P2P technology, possession, use or otherwise is not illegal.

Also, breaking the law by downloading doesn't prove anything except that you've now committed a crime and can be held liable. That just might be why prosecutors don't go around re-enacting the crimes they're prosecuting. I don't know though, I'm no Sherlock Holmes like you are.
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Anonymous Coward, 27 Aug 2009 @ 1:15pm

Re:
Then you must be breaking into houses and stealing. I have evidence that breaking into houses and stealing does occur.
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romeosidvicious (profile), 27 Aug 2009 @ 1:16pm

Re: Re: Circumstantial evidence should be sufficient
"beyond reasonable doubt" is the bar for criminal cases only. These trials are civil and the standard of proof is lower. At present we can only use the laws in place and for civil trials the bar is: "Preponderance of the evidence" or in some cases "Clear and convincing evidence". Like it or not there are different standards. Wikipedia has a pretty nice write up on the whole thing: http://en.wikipedia.org/wiki/Burden_of_proof

This is why the *AAs are winning. "A preponderance of the evidence" is merely: "it is more likely that it happened than it did not" for most cases. I haven't looked ddep enough but with the awards in these cases it is possible the judges should be using the "clear and convincing evidence" standard, which it appears this judge may be doing.

Oh yeah IANAL
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Anonymous Coward, 27 Aug 2009 @ 1:24pm

Re: Re: Re: Re: Re: Re: Re: Re: Specialism v. General
How cool does it sound to have in your criminal record: "going equipped". I bet chicks would dig that.
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CastorTroy-Libertarian, 27 Aug 2009 @ 2:12pm

Re: Specialism v. General
LOL tedious process of finding specific torrents, for the fail on logic look no farther... i have found better and more torrents on Google than anything else (all legal too)

But remember for our AC Shills, all torrents must be bad, and Big Government knows whats good for us...
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TPBer, 27 Aug 2009 @ 2:43pm

Re: Re: Specialism v. General
Don't forget all those rocket scientists who use google in search of "How to commit a perfect Murder"
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..., 27 Aug 2009 @ 6:24pm

Re: Re: Re: Re:
I thought it was rather funny
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Anonymous Coward, 28 Aug 2009 @ 7:44am

Re:
But did they use IsoHunt, if not....Next!!
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faredog, 28 Aug 2009 @ 10:35am

?
Wouldn't be easier to lower prices and still get paid rather than keeping prices high and getting stolen from. check city
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Me?, 28 Aug 2009 @ 10:56am

The RIAA and MPAA cases so far have been civil cases, not criminal. The evidentiary rules for civil are allowed to include inference, in criminal they are not.

Google and TBP are different because one is focused on the illegal downloads and the other isn't. Its the same for ISOHunt, although they do respond to takedown requests, they do nothing that mitigates the addition of stuff and are specifically set up to allow that to happen. On the other hand, Google, doesn't allow stuff to be added, but things are added via their searches, which mitigates the aiding infringment part because they only index whats already out their, vs TBP and ISO that allows people to add. So the difference is in how you mitigate.

Its about time the court asked these big content fools to show an actual loss. To date, niether the RIAA or the MPAA has shown any loss what so ever. In fact in the final Jamie Thomas trial the record lable executive put on the stand, under oath, said he did not know of a financial loss. If the real financial loss wre given in the Jammie Thomas case the award would have been like maybe $15.00. Instead, because the copyright law is so hard to understand by 12 juriors, you end up with the RIAA saying things like "there were millions downloading" implying that Jammie was some criminal mastermind behind some plot to over throw the world.

If big content was made to show what the actual loss was, their victories would be very hollow and few and far between because the juries would see "hey, they only lost $20.00, I can't even take my wife to dinner for $20.00. But they claimed millions in profit last year, and i'm having trouble paying my bills. Why should i feel sorry for them?"

But the way it is now with their inference and not showing any loss they can force the jury to rely on only the copyright law. They don't want to show an actual loss, they know what it will do to their cases. If you or i took anyone to court we would have to show some sort of loss, then why don't they? I say make them prove that every penny lost was a result of the infringment. I'm not for piracy, but i am against unfair practices of special interest, money grubbing, groups beating our courts into submission trying to turn them into money making machines.
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Anonymous Coward, 31 Aug 2009 @ 6:32am

Re:
On the other hand, Google, doesn't allow stuff to be added, but things are added via their searches, which mitigates the aiding infringment part because they only index whats already out their, vs TBP and ISO that allows people to add. So the difference is in how you mitigate.

No, IsoHunt does not allow anyone to upload torrents, they are a search engine only. Just like Google. please learn how Isohunt works.
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MaDDawG, 7 Sep 2009 @ 4:59am

The is is right
I think those greedy exec's need to back the frick up
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Your Mom, 7 Sep 2009 @ 5:04am

The judge is right
u people act like u never done it PLEASE!!!!!! Frick the filthy rich exec's
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i am america, 7 Sep 2009 @ 12:04pm

I thought this is a free country were the poor can become rich. But all I see is the rich staying rich like hollywood. were would they be without the poor making them rich. The real reason for hollywood losing all there profit dosnt come from people downloading, its from the movies them selfs. I remember when a movie was good. not lately, have i yet to see an original movie that wasn't based on an older movie. and thats the reason I wont pay to see a remake. come up with something nobody has ever seen before and i will be there to pay. I am not a tarrorest i am america
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i am america, 7 Sep 2009 @ 12:05pm

I thought this is a free country were the poor can become rich. But all I see is the rich staying rich like hollywood. were would they be without the poor making them rich. The real reason for hollywood losing all there profit dosnt come from people downloading, its from the movies them selfs. I remember when a movie was good. not lately, have i yet to see an original movie that wasn't based on an older movie. and thats the reason I wont pay to see a remake. come up with something nobody has ever seen before and i will be there to pay. I am not a tarrorest i am america
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i am america, 7 Sep 2009 @ 12:10pm

I thought this is a free country were the poor can become rich. But all I see is the rich staying rich like hollywood. were would they be without the poor making them rich. The real reason for hollywood losing all there profit dosnt come from people downloading, its from the movies them selfs. I remember when a movie was good. not lately, have i yet to see an original movie that wasn't based on an older movie. and thats the reason I wont pay to see a remake. come up with something nobody has ever seen before and i will be there to pay. I am not a tarrorest i am america
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Hahaha, 17 Nov 2009 @ 10:42am

Re: Re: Re:
I can show you how to do it from google too. Anybody wants me to demonstrate it on the court.

Just need 2 minute
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:), 16 Jan 2010 @ 11:40am

re:
I use iso hunt all the time infact i am downloading a movie right now. I work at a movie theater and really box office ticket sales are up 16% i dont know where the mpaa gets of saying that they are killing the movie industry. This is gonna just be like napser where they fuck over all of the users and not the company. So yea go mpaa bend over all of the thousands of americans and put it in hard. fuck the mpaa!
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