Almost three years ago the U.S. District Court of California ordered BitTorrent search engine isoHunt to start filtering its search results.
The injunction was the result of isoHunt’s protracted court battle with the MPAA that started back in 2006. The Court ordered the owner of isoHunt to start censoring the site’s search engine based on a list of thousands of keywords provided by the MPAA, or cease its operations entirely in the U.S.
isoHunt implemented the filter which allowed it to remain online, but at the same time owner Gary Fung took his case to the Court of Appeals. Through the appeal, isoHunt hoped to reverse the permanent injunction, but this didn’t come to pass.
Today, Ninth Circuit Judge Marsha Berzon upheld the injunction and the decision was outlined in a 59-page opinion.
The main conclusion is that isoHunt doesn’t qualify for safe harbor protection under the DMCA. One of the reasons is that isoHunt founder Gary Fung had so-called “red flag” knowledge of actual copyright infringements occurring through the site. Not least due through direct interaction with users.
“As noted, the record is replete with instances of Fung actively encouraging infringement, by urging his users to both upload and download particular copyrighted works, providing assistance to those seeking to watch copyrighted films, and helping his users burn copyrighted material onto DVDs,” Judge Berzon writes.
In addition the Judge concludes that there was financial benefit that could be directly tied to copyright infringements. For example, Fung used lists of typical user searches, including popular movies and TV-shows, to sell ad inventory. Adding to this, a very large part of the content shared through the site was copyrighted material, and more infringements led to more revenue.
As a result of the ruling isoHunt’s keyword filter will have to remain operational, along with its flaws. isoHunt founder Gary Fung informs TorrentFreak that for current users of the site nothing will change.
“As a search engine of links, we are not like Youtube or filelockers. We do not have the “right and ability to control”, short of censorship on search keywords, nor the ability to filter as the MPAA or the court suggests, as we don’t touch or host the actual content,” Fung told TorrentFreak.
The MPAA on their turn is happy with the verdict, which will strengthen their position in future lawsuits.
“This ruling affirms a core principle of copyright law: Those who build businesses around encouraging, enabling, and helping others to commit copyright infringement are themselves infringers, and will be held accountable for their illegal actions,” said the MPAA’s Henry Hoberman.
isoHunt, however, is not giving up just yet and will seek a rehearing en banc.
“We will seek rehearing en banc of the isoHunt Ninth Circuit opinion – inducement must be more than a gestalt standard especially when the Court is taking away a person’s right to a jury trial. Ambiguous copyright standards chill innovation,” isoHunt lawyers Ira Rothken says.
“This opinion amounts to little more than we think you were bad at some point in time and therefore you lose. The case ought to be heard by a jury,” Rothken adds.