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PostSubject: US Court Finds isoHunt Liable for Copyright Infringement   Thu Dec 31, 2009 11:58 pm

Judge calls the BitTorrent tracker site “old
wine in a new bottle,” says entertainment industry has provided
“undisputed evidence of specific infringing acts done in the United

Just in time for the holidays the entertainment industry was given a sizable present by US District Judge Stephen V. Wilson

He found that owner, operator Gary Fung and his BitTorrent tracker site
isoHunt had infringed copyright and intentionally encouraged piracy,
stating that the "evidence of defendants’ intent to induce infringement
is overwhelming and beyond reasonable dispute.”

"The court's decision establishes a powerful precedent that makes
clear, once again, that website operators must respect the rights of
content owners and control infringement on their websites, or face
liability for their actions," said MPAA vice president Daniel Mandil in
a statement.

The ruling comes three years after proceedings were first opened against Fung.

Throughout the battle he has argued that his BitTorrent portals were
comparable to Google in that they simply enabled users to find content.
Fung's lawyers argued that he could not be liable as he did not host
any copyright infringing content himself.

Specifically, he centered his defense around three main arguments: first, that

BitTorrent technology is different from the other technologies because
users do not download content files from one another and not via the
site itself; second that users’ conduct is protected by the First
Amendment; and third, the fact that users are located around the world,
and not just in the US, meaning that any ruling would affect their
rights as well.

On the first argument the judge calls it “nothing more than old wine in
a new bottle.” Here the judge doesn’t seem to have a full grasp of the
technology at hand because he considers BitTorrent to be merely an
improvement of earlier Grokster-type Direct Connect-style P2P.

The ruling reads:

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

But, BitTorrent really is “new wine.” The site doesn’t host any
copyrighted material and should be protected by the DMCA as are other
search engines like Google and Bing.

Fung’s second defense, First Amendment protection, is dismissed outright by citing established caselaw.

As for the third, the Judge says it doesn’t matter because the fact is
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.” he adds.”

Probably the most damaging evidence used against Fung is the fact that
isoHunt lists what the most popular downloads are in different
categories, meaning he is well aware of copyright infringement by users
and failed to stop it.

“Defendants designed the websites and included a feature that collects
users' most commonly searched-for titles,” says the Judge. “The fact
that these

lists almost exclusively contained copyrighted works and that
Defendants never removed these lists is probative of Defendants'
knowledge of ongoing infringement and failure to stop this

What also hurt Fung’s case is Fung himself for having made repeated damaging statements to his cause.

"Morally, I'm a Christian. 'Thou shalt not steal.' But to me, even
copyright infringement when it occurs may not necessarily be stealing,”
,” reads the ruling, citing an interview Fung gave with another website.

Fung’s attorney, Ira Rothken, says they may appeal the ruling, and it
remains to be seen what effect, if any, it will have on the site being
it’s not hosted in the US.

"We do think from our preliminary review there are a number of issues for appeal," Rothken told Wired.
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