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: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:
(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.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: bittorrent, copyright, file sharing, gary fung, infringement
Companies: isohunt
Reader Comments
Subscribe: RSS
View by: Time | Thread
CDs anyone
Delete "Defendants' websites " insert "CDs"
Yes that makes sense....
[ link to this | view in chronology ]
CDs Again
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.
CDs fill that bill too!
[ link to this | view in chronology ]
SHUT DOWN THE INTERNET
"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"
[ link to this | view in chronology ]
Re: SHUT DOWN THE INTERNET
Yes. That's why it's so troubling.
[ link to this | view in chronology ]
Hypothesis
Hypothesis 2: If he just deleted ALL links on the site right now and started over, disavowing any knowledge of what is put on his site; Would that work?
I'm fuzzy on this, but what happened to the Section 230 Safe Harbors...? Not applicable in this instance?
[ link to this | view in chronology ]
Is this him realising or mentally toying with the idea of the difference between paying for access vs paying directly for content itself?
In any such case, another example of mistaking paying for access as being the only model, or one that deserves protection, y'know, just because. He can't change the current law, but to then go on to thinking that magic wands even exist is blatantly too far. Perhaps he picked up a copy of his kids Harry Potter books by mistake and took them literally?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
What are the 'movie studies'? How do studies adapt to a changing market? I thought studies were analysis not entities that can do things.
[ link to this | view in chronology ]
EXTREMELY BAD ARTICLE
what it means is the site has to ban all american ips
and proxies to prevent Americans from getting anything.
THERE are in fact dozens of private sites hosted in canada and a few public trackers too
WILL the mpaa/riaa sue the pirate party of canada for having a tracker too?
[ link to this | view in chronology ]
The public interest? Don't make me laugh.
IsoHunt may be US-based, but that shouldn't stop him from moving his company to another country, and perhaps pass control to someone else.
[ link to this | view in chronology ]
It is the wrong fight
[ link to this | view in chronology ]
Aid and Abet
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.
COMPLICIT:
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.
[ link to this | view in chronology ]
Re: Aid and Abet
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."
Except of course for the studies which say...the exact opposite.
"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."
Umm...yeah, except they don't "include" anything. The users do.
[ link to this | view in chronology ]
Re: Aid and Abet
Taking notes from TAM?
[ link to this | view in chronology ]
Re: Aid and Abet
We all know? Of course, that's not true. Studies have shown many people use file sharing as a "try before you buy" system. So you could also make the argument that it has helped. What if you download a movie, like it so much you tell all your friends, and they go, and wouldn't have otherwise?
The problem is you don't know.
And we all know that instead of buying to CD or going to the movie, people will opt to download it instead.
Why? The movies had their best box office ever last year. Downloading a movie is nothing like the experience of going out to a theater.
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.
Then I cannot allow you to post comments here any more. It looks like the text at the top of you comment is copied from somewhere else. But I don't know. Since I don't know, I can no longer allow you to post, by your own logic.
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.
Yes, lots of people go to Google to find downloads. Should Google be banned?
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.
I said no such thing.
[ link to this | view in chronology ]
Re: Aid and Abet
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.
I see. So, if you observe someone, for example, speeding or failing to signal a lane change and you fail to "report" them, then you are complicit in their crime, eh? Man, you copyright people really are a bunch of freedom hating, fascist, spy-on-your-neighbor scum bags. In response then, I call on all freedom loving people to engage in civil disobedience and infringe on as many copyrights as possible. Even if you wouldn't have otherwise, I encourage you to do so now just to stand up to these dirt bags.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
Saying you can't compete with free is saying you can't compete period
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
Then you're selling the wrong "product", and that's a bad business model decision.
so, would you like to try again?
Maybe you should do that with your business model.
[ link to this | view in chronology ]
Re: Re: Re: Re:
Ridiculous.
[ link to this | view in chronology ]
How will this serve the public interest? Why should I expect a judge to be able to determine what's in the public interest better than the public? If the public thinks that infringement is not in the public interest then most of them will naturally not infringe without any punishments necessary. Then Hollywood et al should have no problems getting paid. If the public as a whole infringes that means they don't think this decision is in the public interest. and who is a judge to determine what's in the public interest better than the public?
[ link to this | view in chronology ]
Re:
Because most judges are egomaniacs who think they know best what is best for everyone else.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
Try reading the story before commenting. The case isn't about offensive material, it's about copyright infringement.
[ link to this | view in chronology ]
the judge
guess I'm still entitled to my misguided opinions... I think if anyone actually did what I'm suggesting they would be incredibly foolish to listen to a random internet comment on blog.. they'd probably certainly face criminal charges at any rate..
but my point is, to quote Milton..
Their rising all at once was as the sound of thunder heard remote.
-Paradise Lost. Book ii. Line 476.
[ link to this | view in chronology ]