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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