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

from the fantasy-legal-land dept

Fri, May 21st 2010 3:10pm — Mike Masnick

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

29 Comments

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Richard (profile), 21 May 2010 @ 3:23pm

CDs anyone
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.

Delete "Defendants' websites " insert "CDs"

Yes that makes sense....
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Richard (profile), 21 May 2010 @ 3:25pm

CDs Again
or
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!
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Rick, 21 May 2010 @ 3:38pm

SHUT DOWN THE INTERNET
Wouldn't this basis actually imply that browsers, ISPs and the entire functionality of the internet in general is in violation of the court order?

"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"
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CrushU, 21 May 2010 @ 3:38pm

Hypothesis
Isohunt is ordered to not knowingly engage in those three activities. Isn't that already the case?

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?
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Modplan (profile), 21 May 2010 @ 3:48pm

...growing legitimate market for consumers to purchase access to the same works.
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?
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Anonymous Coward, 21 May 2010 @ 3:55pm

I can bring up the same torrent files through Google. When is Google going to get slapped with an injunction and lawsuit? Oh that's right it never will because Google has money and will defend itself. Isohunt and other search engines don't.
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Anonymous Coward, 21 May 2010 @ 4:01pm

"If the movie studies actually, you know, adapted to the changing market (as some are figuring out), they could actually do much better."

What are the 'movie studies'? How do studies adapt to a changing market? I thought studies were analysis not entities that can do things.
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NAMELESS.ONE, 21 May 2010 @ 4:02pm

EXTREMELY BAD ARTICLE
ISOHUNT IS HOSTED IN CANADA.
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?
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Anonymous Coward, 21 May 2010 @ 4:29pm

"the Court agrees that the public interest will be served with a permanent injunction"

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.
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jfgilbert (profile), 21 May 2010 @ 5:28pm

It is the wrong fight
I, for one, and I am sure a fair number of people, really don't care enough about the stuff produced by Hollywood and the big labels to get into this. If they want to wage war against so called "pirates", that's their problem. My concern, though, is collateral damage. The war on drugs gave us warrantless searches and seizures, and filled prisons with non-violent addicts; the war on terror gave us the TSA and routine spying on US citizens. If this continues, the war on pirates will give us a broken Internet. We should not argue with big content that their approach is stupid, or try to defend the P2P sites, our goal should be to isolate these idiots - both sides - so they only break each others' businesses.
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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.

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.
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Anonymous Coward, 21 May 2010 @ 6:01pm

Re: Aid and Abet
"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."

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.
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Anonymous Coward, 21 May 2010 @ 6:02pm

". 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? " - this is the most arrogant statement of the year, by far. you have yourself said that there is no competing with free, at least not directly, your suggestions are always to stop selling the product, give it away, and then try to sell some sort of rarity or whatnot that people will for someone reason overpay for. the reality is that abundant availability of the same product for free will always cause great and irreparable harm. this judge recognizes that simple fact.
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Anonymous Coward, 21 May 2010 @ 6:04pm

Re:
Magic!
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Modplan (profile), 21 May 2010 @ 6:08pm

Re: Aid and Abet
Nice to see you relying on baseless assertion, bad logic and generally making crap up about statements that never existed in the article.

Taking notes from TAM?
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Modplan (profile), 21 May 2010 @ 6:10pm

Re:
Trolls: Making crap up since the beginning of the internet!

Saying you can't compete with free is saying you can't compete period
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Mike Masnick (profile), 21 May 2010 @ 6:50pm

Re: Aid and Abet
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.

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.
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Anonymous Coward, 21 May 2010 @ 7:21pm

"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. "

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?
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Anonymous Coward, 21 May 2010 @ 9:36pm

Re: Re:
you linked to one of the all time biggest lies of techdirt. it fails to address the simple issue: you cannot compete with your own product "free". you can compete against other products free by offering a better product, but you cannot compete against your own product being free. quite simply, the free people are not only undercutting you on price, they are also making you pay to produce the product. so, would you like to try again?
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Anonymous Coward, 21 May 2010 @ 10:43pm

Re: Re: Re:
Except, of course, that there are numerous examples proving you completely and utterly wrong...as usual.
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Modplan (profile), 22 May 2010 @ 1:08am

Re: Re: Re:
Or maybe you'd try RTFA?
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Anonymous Coward, 22 May 2010 @ 2:46am

Re: SHUT DOWN THE INTERNET
Wouldn't this basis actually imply that browsers, ISPs and the entire functionality of the internet in general is in violation of the court order?

Yes. That's why it's so troubling.
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Anonymous Coward, 22 May 2010 @ 3:35am

Re: Aid and Abet
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.

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.
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Anonymous Coward, 22 May 2010 @ 3:39am

Re: Re: Re:
you can compete against other products free by offering a better product, but you cannot compete against your own product being free.

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.
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Anonymous Coward, 22 May 2010 @ 3:42am

Re:
Why should I expect a judge to be able to determine what's in the public interest better than the public?

Because most judges are egomaniacs who think they know best what is best for everyone else.
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Anonymous Coward, 22 May 2010 @ 4:20pm

as always, isohunt could hold every submission for review, and manually check each item to make sure that it is not offending, and then list it. but the reality is that there is no money in doing that, and certainly no street cred, so they wont do it. the solution is always at hand, but they choose not to take it.
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trench0r (profile), 22 May 2010 @ 4:56pm

the judge
I think someone should go to Stephen Wilson's house and paste a note on his door a la http://www.techdirt.com/articles/20100216/1140458185.shtml

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.
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Anonymous Coward, 23 May 2010 @ 6:56pm

Re:
as always, isohunt could hold every submission for review, and manually check each item to make sure that it is not offending,

Try reading the story before commenting. The case isn't about offensive material, it's about copyright infringement.
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Kevin Grant, 1 Aug 2012 @ 6:44am

Re: Re: Re: Re:
Sounds like a stupid argument to me. Try being honest with yourself (and us). If John Q Public can buy my product, or get it free, which do you think he will choose? Do you seriously think that people prefer to pay for a product they can have for free?

Ridiculous.
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