BitTorrent Site IsoHunt Demands Jury Trial
- 04.04.13
The operator of the popular file-sharing service isoHunt is demanding a federal appeals court grant it a jury trial, two weeks after the court declared it a massive copyright scofflaw and said it’s on the hook for what could be millions of dollars in damages payable to Hollywood studios.
A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled against Gary Fung and said the Motion Picture Association of America automatically won on the merits of the case, without a trial. The decision marked the first time a federal appeals court had ruled against a BitTorrent search engine.
“Fung submits that, in a serious miscarriage of justice in a landmark case, he has been wrongfully denied trial by jury and found liable by judges on disputed facts through application of erroneous legal standards,” Fung’s attorney, Ira Rothken, wrote the 9th U.S. Circuit Court of Appeals late Wednesday. In a bid to acquire a jury trial, Rothken asked the appeals court to rehear the case with a larger panel of judges, in what is known as an en banc panel.
The appeals court had ruled that isoHunt, and Fung’s related sites, TorrenTBox and Podtropolis, unlawfully pointed the way to free movies, music, videogames and software that were copyrighted and not authorized for Fung to help distribute. The court said Fung had so-called “red-flag” knowledge of the infringement, and didn’t take enough steps to rectify it.
Rothken demanded a trial, saying Fung’s activities are no different than Google, for example, which also hosts links to infringing material.
“No infringing materials touch Fung’s websites; he has no capacity to investigate or to police the internet,” Rothken wrote.
Programmer Bram Cohen released the BitTorrent file-sharing protocol in 2001, and its efficient way of transferring files has become the method of choice for illicit, peer-to-peer sharing of copyright-protected content that sites like Canada’s isoHunt and Europe’s The Pirate Bay have capitalized upon.
The San Francisco-based appeals court ruled that, unlike the search engine Google, Fung does not deserve protection under U.S. copyright laws for hosting links to pirated content. That’s because Fung’s business model, the court said, was designed for the primary purpose of copyright infringement, with the majority of links on his search engines pointing to unauthorized, copyright-protected content.
Fung claimed it was not he, but his millions of users, who fed his sites with links and were redistributing them without authorization from the rights holders. Fung asserted that he was merely a search engine, like Google, that was protected by the Digital Millennium Copyright Act’s so-called safe-harbor provision that permits internet companies to escape liability for illegal content posted by their users if it is promptly removed at the request of the rights holder. Fung claimed he removed files upon request.
The appeals court did not see it his way, ruling the safe harbor under the DMCA does not exist for sites that “induce” unlawful file sharing. The court noted that isoHunt had prominently featured a list of “Box Office Movies” of the 20 highest-grossing movies in U.S. theaters, and also hosted links to where the movies were being seeded by BitTorrent users. Once somebody begins downloading the link, they also begin seeding the file to others in what is known as a “swarm.”
The court said that Fung also posted messages on the site asking users to upload torrents of copyright-protected films, and he urged file-sharers to download files when visiting his site — which profits via advertising.
Fung’s attorneys suggested that some of his speech was taken out of context, and wants a jury to decide.
“Liability based on messages culled from digital storage that are remote from any specific infringements at issue will severely chill free speech. The effect of decisions herein is to make sarcasm directed at copyright enforcement or statements in support of file-sharing a reason for later imposition of liability,” Rothken wrote.
Links to unauthorized content can still be acquired via Fung’s websites, despite a lower court judge having ordered Fung to filter out copyrighted content via keywords.
Absent a trial, Fung is likely to face harsh monetary damages when the case returns to Los Angeles federal court, where Fung was initially found liable in 2009. The U.S. Copyright Act allows damages of up to $150,000 per infringement.
Read more by David Kravets
No comments:
Post a Comment