isoHunt and MPAA Debate Legality of BitTorrent Sites
Written by Ernesto on May 04, 2008The legality of BitTorrent sites has always been highly debated. As of today, no court has ever ruled that a website offering .torrent links is legal or not. This might change soon, as isoHunt and the MPAA once again clash in court.
The isoHunt vs. MPAA case has been dragging on for more than two years now. It basically comes down to the question whether a BitTorrent site is facilitating copyright infringement by indexing .torrent files, that in some cases point to copyrighted material. An important question, and the answer is likely to set a precedent for future cases against similar sites.
In April, the appointed judge asked both parties to clarify how BitTorrent works, and what isoHunt’s contribution is to the copying of (copyrighted) material. Little over a month ago the MPAA explained (in private) to judge Wilson why they think BitTorrent sites are infringing copyright, and today isoHunt has filed a response.
“The MPAA has taken a narrow point of view that copyright infringement is stealing, that isoHunt serves no other purpose than promoting and facilitating infringement of Hollywood films,” isoHunt owner Gary Fung writes. He and his lawyers refuse to be compared to “the bogeyman selling pirated DVDs on the street”, and explain why.
One of isoHunt’s arguments is that the site is in fact very similar to search engines like Google. They write: “The essential functions performed at a torrent site are also performed at a comprehensive search site like Google or Yahoo!. To visualize a visit to isoHunt, start off with a visit to Google – only a few things are changed, mostly superficial, and the workings are very similar.”
This is not a new argument, two years ago TorrentSpy used a similar analogy, and last year OiNK administrator Alan Ellis told The Telegraph: “If Google directed someone to a site where they can illegally download music, they are doing the same as what I have been accused of. I am not making any Oink users break the law.”
Indeed, torrent sites do not host or directly link to copyrighted content. In the filing isoHunt goes on to explain how BitTorrent works and what the role of the site is in the downloading process. They explain that all the site does is collect and index metafiles (torrents), and that they are not directly involved in the downloading process.
The MPAA does not agree, and has argued that sites such as isoHunt offer a “centralized index” of copyrighted material. isoHunt, however, does not agree with this view, and tell judge Wilson: “It is a semantic game to argue that Defendants provide a “centralized index.” The words “centralized” and “central” are contrary to the principles that shape and define BitTorrent technology.”
BitTorrent is indeed decentralized rather than centralized, and the claim that BitTorrent sites are an “index of copyrighted material” is not correct either, since .torrent files itself are not copyrighted. Some files may link to copyrighted material (hosted on computers all over the world), but there are thousands of .torrent files that link to material that is uploaded with the permission of the copyright holder.
isoHunt as a service does not infringe or facilitate copyright infringement, all they do is host .torrent files. These files may or may not point to copyrighted material, but this seems to be irrelevant. The site is not alone, hundreds of sites index .torrent files, and even Google has a .torrent search command. BitTorrent or .torrent links have nothing to do with copyright infringement, nor do sites like isoHunt.
“More innocent than Google, Defendants have no part in the design or operational control of the BitTorrent Network and have no more than a membership role,” isoHunt’s lawyers write. Perhaps the MPAA should sue Google next?
To be continued…
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93 Responses (Add yours or TrackBack)
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[quote]“Perhaps the MPAA should sue Google next?”[/quote]
I believe there is a law that makes it illegal to sue a website for searching.
[quote comment="373228"]TorrentSpy used a similar analogy and lost. So why do the same?
It is better to show how your in the right. And leave it at that. imo
I never like the analogy so and so does it.[/quote]
Too bad TorrentSpy lost the case due to destruction of evidence and a default judgement as a result. It’s not their analogy that made them lose their case.
The theory has always been that they are “making available” copyrighted works, which is not illegal in itself, and nor do they even make available. They only link to or host torrent info, which is not copyrighted.
Another important point I believe was made quite some time ago by a judge, I don’t remember who or when;
that after copyrighted work has legally been sold and distributed to the mainstream public, copyright infringement becomes unenforcable, or something to that effect, and makes good sense.
The cartels of course want full control, as that’s what they’re about. This sue all approach makes them look so stupid, and the Internet is more powerful than them and is not going away, nor is file sharing which is an integral part of it.
It will come to the point when they realize they are in a losing battle, and then like the turncoats they are, they will figure the “if you can’t beat ‘em join ‘em” approach is due.
Maybe it’s time they sacked the RIAA and sued them for all they’ve got
Wired.com is soooo 10 years ago!
@ 18 gordon:hey man are you talkin about Ireland or do our countries sound very shit similar and full of dumb cunts?
[quote comment="373228"]TorrentSpy used a similar analogy and lost. So why do the same?
It is better to show how your in the right. And leave it at that. imo
I never like the analogy so and so does it.[/quote]
True, that is a weak excuse, if that’s the best they could think of. If we are pulled over for speeding and asked why, and said “everybody does it”, how would that hold up? Or if a thief’s excuse was that a lot of people do it, and maybe also get away with it.
I agree it only conveys guilt. Better to explain personal views, assuming you have them.
there’s one huge different between BT site and google , that is MONEY and google has a lot of it. this also the reason why youtube still standing despite hosting a lot illegal stuff .
sad to say but i think isoHunt effort will be waste .
@ 32
Again, the Google comparisons don’t work. Youtube WAS sued a couple of years ago (immediately after Google bought them), but Google wisely did not attempt to take the “we’re just a search engine” defense and actually tried to work with the labels and studios to come up with some kind of working arrangement.
Google agreed to actively monitor for and remove infringing YouTube content (as opposed to only removing them when they receive a complaint).
In addition, YouTube is quietly paying license fees to many copyright holders. If you see a video on YouTube from a major artist and it hasn’t been taken down after a while, it’s probably because YouTube and the record company have a licensing agreement worked out. Otherwise, YouTube’s system would take it down within hours.
It’s not much, but it’s far more than any bittorrent indexer site has bothered with.
Sorry, that was directed at @33, not @32
Reguardless if you like tha analogy or not, it is what it is. You cant compare a torrent site to a toaster, you need to use like for like, and the closest thing to a torrent site, is Google or Yahoo. The fact that people use a torrent search engine for questionable legal use is irrelevant and for all intents and purposes, no different than using a search engine like Google for tips on stalking that neighbor you like , growing weed, or how to whack someone without getting caught. If a torrent search engine is guilty of infringement then Goolge is guilty of conspiracy to commit murder, rape, drug trafficing and any number of other crimes they ‘enable’ people to commit.
@ 36
The argument that “Google does it too” does not necessarily save isohunt. No court has given Google a free pass to facilitate copyright infringement. Bittorrent search engines need to develop a defense that is based on the copyright law of their countries, established case law and nothing else.
It’s POSSIBLE that a sympathetic court could buy into the “covered by DMCA safe harbor” bit, but this argument could be undermined by the fact that most people are using bittorrent search engines illegally. You may not feel that this point is relevant, but the wording of the DMCA is ambiguous enough to allow for interpretation on the part of a judge or jury–and they may not interpret it in the same the way that you do.
As I have already stated, Isohunt complies with the DMCA. It is the MPAA who chose legal action rather than do what everyone else does, and that request that their content is removed. Isohunt’s point seems to be that they as an entity have no control over what the bittorrent user chooses to do with their bittorrent client. It is the client that facilitates the copying and distibution of copyright protected material, not the bittorrent site. The bittorrent site does not in any way breach the copyrights of others. No data pases through their servers that belongs to others except with the express permission of the copyright holder, nor do the .torrent files themselves contain any copyright protected material. You cannot build a case based on copyright where there is no breach of copyright to deny or defend. No one has said that Google has free pass to facilitate infringement, never the less, it is used for that purpose. The Judge asked for a sumary explanation of what bittorrent is and the methods employed in its use, and as any idiot knows how Google works, it is the best way to explain a bittorrent search engine using concepts that are well know and easy to comprihend.
The argument that passively responding to content removal requests is sufficient to satisfy DMCA requirements has been challenged legally.
I don’t think this challenge was ever settled because Google (via YouTube) caved under pressure and agreed to set up active monitoring (when they were sued by various parties) and pay for licensing.
If anything, the Google analogy may backfire because Google themselves have demonstrated a willingness to develop a system to actively filter for copyrighted material.
[quote comment="372820"][quote comment="372752"]“Perhaps the MPAA should sue Google next?”
Actually, my fear is, that at some point, they WILL. Well, if not sue them, but they could “come up with an agreement” or something - just think of the censorship agreements with China - Google are not always the “friendly hackers” we think them to be.[/quote]
Actually, I’d be keen on the MPAA going after Google. This isn’t some individual or small group; they have buckets of cash to take a proper fight to them. Of course, yea, if they cave thats a whole different story…[/quote]
google would win
Slight difference, in the case of Youtube, they actualy hosted and distributed infringing content. The only relevence to that particular case would be if isohunt had servers seeding infringing torrents, which they do not.
@41 Good point.
If you put together two rabbits, a buck and a doe, you can bet your carrots that there will be more than two rabbits after a while. And who’s fault is it?
Did you not know that copyright is up to them? Would you ever ask this question? Would you not bet your carrots? Would you let them become extinct?
[quote comment="372870"]@7
isohunt doesnt have a tracker. they are only indexing torrents that point to other peoples trackers![/quote]
Actually they do, they have 2.
From isoHunts bitTorrent clarification response.
[quote]Defendants run trackers torrentbox and podtropolis.[/quote]
Still a tracker doesn’t do anything illegal, it connects me to you and then [b]we[/b] do illegal stuff.
help promote filesharing…
let people know at:
http://debatewise.com/debates/305-bittorrent-and-filesharing-which-side-are-you
[quote comment="372832"]It’s a stretch to compare Google to torrent sites. Sure, all they do is index, but most of the people who are using those trackers are distributing copyrighted materials.[/quote]
In terms of “facilitating copyright infringement”, Google is 110% identical to torrent sites. Literally, there is no difference.
http://www.google.com/search?hl=en&sa=X&oi=spell&resnum=0&ct=result&cd=1&q=%22pirates+of+the+caribbean%22+torrent&spell=1
To call the comparison a stretch is downright fucking delusional, especially when you base it on something as mindnumbingly irrelevent as what you guess most people use Isohunt and what you guess most people use Google for.
[quote comment="373500"]
The argument that “Google does it too” does not necessarily save isohunt.[/quote]
By indexing torrents, Isohunt is no more responsible for facilitating copyright infringement than Google is for indexing Isohunt. That is not an argument, nor is it necessarily a defence - rather, it is a humble statement of fact.
They won’t sue Google because they know they would be hammered into the ground by Google’s very expensive legal teams, which would then set a bad precedent for the MPAA and most likely destroy any further cases they may wish to pursue.
It would be nice then.
@43
“Still a tracker doesn’t do anything illegal, it connects me to you and then we do illegal stuff.”
This is one thing that makes the analogy with Google invalid. A tracker *is* facilitating the sharing of the copyrighted material, while google is pointing to a file (torrent) that is pointing to the tracker that is connecting the peers doing the illegal sharing.
BT site: Lets you find torrents, and connects peers (i.e. facilitating illegal filesharing).
Google/any SE indexing torrents among other files: Lets you find torrents, but does not connect peers.
So to be honest, there is a difference between indexing a trillion files (among which some are torrents), and indexing only torrents AND acting as the middleman (being a tracker).
Never the less, running a tracker should not equal violating copyright, but perhaps facilitating the violation of copyright. And why should society spend huge resources on that rather harmless crime? Perhaps that is what people really should debate.
What has happened is that the justice system is investigating and prosecuting those crime whose alleged victims are the ones most successful in lobbying politicians claiming *their* crime/problem is the one most important for the society to fight — no matter if it takes orwellian measures and the filtering of the internet etc to stop those “crimes”.
@11 Please don’t point people to dodgy websites like Dargens.com. Seriously, though, you’re retarded if you use that site! Death of p2p apps happened a long time ago! Long live torrenting!! Just retards like you that keep them dragging along…
On their site: “”ANONYMOUS P2P file sahring”"
Please, never fking trust a site that can’t get simple spelling correct!!
It seems to me like a neverending dispute. I don’t know why the MPAA doesn’t sign contracts with all the ISP and allow their subscribers to pay a small fee to download all the movies they want. So instead of loosing billions of dollars every year because of piracy they win billions from this agreements. Imagine for a moment that 500.000.000 internet subscribers will pay, let’s say, just 2 extra dollars/month this means 1 billionn dollars and 12 billion dollars a year for Hollywood. And this is only from ISP subscribers. More than that they could add small advertisings as text during the movie. And gain other billions. For me their logic is not to be understood. This is a battle that will go on for ever. No one will ever win. Why doesn’t MPAA facilitates the creation of a big server from where they can distribute movies to those who are registered thru their ISP. And than the money wil very simple be distibuted to the movie companies according to the number of downloads.
This method could easily be applied also to music files, apps, games s.a. It seems right to me and i wouldn’t mind to pay a few extra dollars for downloading legal stuff.
Maybe i’m wrong but at least this is a solution as far as i’m concerned.
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