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isoHunt Loses on Summary Judgment

This is being widely reported elsewhere, most notably by Michael Geist (who includes a copy of the 47 page decision) and ArsTechnica, among others, but the U.S. District Court for the Middle District of California has granted summary judgment to the film industry in its suit against Gary Fung and isoHunt, a BitTorrent search site. Primarily using the rationale from MGM v. Grokster, that is, inducement of infringement, along with a bit of Napster style vicarious liability premised on the ability to control users, the court’s 46 page decision makes for some interesting reading. I won’t try to dissect the whole thing here, but rather will focus on one part of the Court’s conclusions.

The defendant’s primary arguments, as summarized by the Court, were that BitTorrent is different from previous technologies (such as Napster and Grokster) because users do not download content from BitTorrent search engines (but rather download only .torrent files); that the First Amendment protects defendant’s activities; and, that the distribution of the site’s users throughout the globe such that they cannot be liable in a U.S. court for the downloads of non-U.S. users.

I want to take up the first issue, the technology itself. From page 45 of the opinion:

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.

I used BitTorrent as an example when I recently taught a course that looked at copyright law from the perspective of risk management (ie, your client runs a business, it implicates copyright, how do they deal with the copyright related risks in this context). We concluded that BitTorrent technology itself was not illegal. The technology has a host of legitimate uses (distribution of linux updates being one of the better known), so it probably falls within the Sony paradigm. But this is no longer the only contributory liability scheme that copyright holders have to go after technologies and especially technology Web sites. Under MGM v. Grokster, the Supreme Court allowed a finding of contributory liability essentially for marketing and business methods, that is, where marketing and business practices “induce” copyright infringement.

In our class, we focused on this element and suggested that our hypothetical BitTorrent search engine site be careful about public advertising, statements, and forum use. It seems not only was isoHunt not careful, but didn’t even try to mount a serious defense to the accusations made by the movie industry — accusations that went primarily to the actions of Fung and isoHunt users, rather than to the BitTorrent technology itself. I’m not sure what Fung could have offered in response to what the plaintiffs pulled from his own website, but offering something might have been useful (the Court notes at the beginning of the opinion, “The material facts supporting Plaintiffs’ claims are almost wholly unrebutted. Generally, Defendants rest their case on legal arguments and meritless evidentiary objections, and offer little of their own evidence that directly addressed Plaintiffs’ factual assertions.”).

In reading the opinion, it almost felt as though the defense was based on a pre-MGM v. Grokster “Sony/Napster” style argument: it’s not our fault, we didn’t do the infringing, we didn’t control the infringers, and the infringers didn’t actually infringe “through” us. This argument is, post-MGM v. Grokster, a loser where the defendant’s actions have sufficiently made infringement part of their purposes. It’s also a loser where there is sufficient control by the defendant over the infringers (ie, Napster, through its use of a centralized server). Here that control wasn’t over downloaders or content files themselves (as in Napster), but over .torrent file uploaders to the search engine/index. The indexing site steps into the “central server” role that was important in Napster. That gives two ways to for these sites to be held liable: Napster style “control” and Grokster style” inducement. isoHunt got hit on both.

I do disagree with the first and last sentences of the Court’s statement above, though, that BitTorrent technology is no different from prior technologies. I think it is, in that the decentralization of trackers and torrents changes the focus in the way I’ve described. We become less focused on the technology (BitTorrent) and more focused on the outcomes (ie, because of what you did — created a BitTorrent search engine — people are infringing copyright). If we put the search engine sites into the “central server” role from Napster, it’s not the BitTorrent technology that matters but the search engine’s actions. Let me emphasize that:  it is no longer the technology that matters, but the things that are done with it that does. Making the actual content files themselves “distributed” (among the peers) doesn’t really help the search sites in this context. And claiming the sites are “merely” web pages doesn’t seem to be convincing to the courts (nor would a hundred “we don’t host any files we just link to them” disclaimers such as those prominent on many download-focused sites). It’s what you do, not what you do it with or what you say you are doing, that matters.