p2pnet news view P2P:- Vancouver web site owner Gary Fung has lost the latest round in his battle with the corporate entertainment industry.

We say ‘latest’ because the next question is: will Fung appeal?

The case was “nothing more than old wine in a new bottle”, decided US judge Stephen V. Wilson, issuing a summary judgment ruling Fung’s isoHunt indexing site breaks US copyright law by inducing copyright infringement

This isn’t a huge surprise, “given how courts have ruled previously, but there are some oddities,” says Mike Masnick on TechDirt, going on >>>

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 stealing.”

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.

Concluded Wilson >>>

This case contains the same general pattern presented in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001), and,more recently, Arista Records LLC v. Usenet.com, Inc., 633 F. Supp. 2d 124 (S.D.N.Y. 2009). The Defendants in the present case attempt to distinguish their situation on three main grounds: first, that the BitTorrent technology is different from the other technologies because users do not download content files through Defendants’ websites; second that Defendants’ conduct is protected by the First Amendment; and third, that Defendants’ users are located across the globe, not just in the United States.

On the evidence presented to the Court, none of these arguments raises a triable question of fact for the jury to decide. Defendants’ technology is nothing more than old wine in a new bottle. 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.

Regarding Defendants’ second main argument, caselaw establishes that Defendants are misguided if they think that the First Amendment provides blanket protection to all internet-based activities, particularly where those activities involve copyright infringement.

Finally, Defendants third main argument ignores the unrebutted fact 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. Thus, as in Grokster, summary judgment is appropriate on the question of inducement liability. For the foregoing reasons, the Court GRANTS Plaintiff’ Motion for Summary Judgment on Liability as to inducement of infringement. The Court sets a status conference for January 11, 2010, at 1:30 p.m.

However, the cartel ‘victory’ means little in the overall scheme of things.

Every time Big Music and Hollywood whack one site, two more pop up.

Click here for the full document.

Stay tuned.

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First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

TechDirt – IsoHunt Loses Big; Court Says: You Induce, You Lose, December 23, 2009

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This entry was posted on Thursday, December 24th, 2009 at 10:02 am and is filed under P2P. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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