In May last year the U.S. District Court of California issued a permanent injunction against BitTorrent search engine isoHunt.
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. The injunction was the result of isoHunt’s protracted court battle with the MPAA that started half a decade ago, in 2006.
IsoHunt owner Gary Fung decided to implement the filter, and is now up for an appeal at the Ninth Circuit Court of Appeals. There, he hopes to get the law on his side and quash the previous District Court ruling. IsoHunt argues that they’re just like Google – a neutral search engine – and hopes the court will decide that the keyword filter is needless censorship.
The appeal is currently ongoing. Two months ago isoHunt filed its opening appellate brief to the Court, requesting better protection from such mass copyright lawsuits for both isoHunt and other search engines alike. Even Google may face similar censorship threats if the injunction holds up, isoHunt lawyer Ira Rothken argued.
Google has been keeping an eye on the legal battle between the MPAA and isoHunt as last week, out of nowhere, the company unexpectedly got involved in the motion for summary judgment appeal. The search giant, which has always stayed far away from these types of cases, filed an amicus cuiae brief (third party testimony) at the Appeal Court.
“This cases raises issues about the interpretation and application of the safe-harbor provisions of the Digital Millennium Copyright Act, 17 U.S.C. § 512 et seq. (“DMCA”) and common-law rules governing claims for secondary copyright infringement. Google has a strong interest in both issues,” Google’s counsel writes.
Google asked both isoHunt and the MPAA studios for their consent in filing the amicus curiae brief. Interestingly enough, the movie studios didn’t want Google to take part, while isoHunt was more permissive. That doesn’t mean, however, that the brief is in support of isoHunt’s case, not at all.
In fact, Google specifically states that it agrees with the District Court’s conclusion that the isoHunt search engine induced copyright infringement. According to Google isoHunt can be seen as a true “pirate” service and no objections are made against the Court’s final decision.
What Google is worried about is the reasoning the District Court used to reach its conclusion.
“While in agreement with the result reached in this case, Google is concerned that some of the reasoning offered by the district court goes too far and would upset the careful balance between copyright protection and technological innovation struck by the Supreme Court and Congress. Particularly because this case is not a hard one, it should be decided narrowly,” Google writes.
Google argues that there is plenty of evidence that isoHunt encouraged its users to download copyright infringing content. However, in the discussion on the relation between inducement and liability the Grokster standard is ignored, especially the question of whether the inducement led to direct infringements or not.
Google wants to address this because they fear it may otherwise lead to a negative outcome for themselves.
Another major issue Google addresses is the District Court’s analysis of the DMCA’s safe harbor and the inducement of copyright infringement. According to Google this discussion can severely impact ‘legit’ businesses like YouTube.
“As with its treatment of inducement, the district court’s discussion of the DMCA reached the right result but in a problematic way. The court complicated a straightforward DMCA case by wading into an unnecessary discussion of the relationship between the statutory safe harbor and judge-made principles of secondary liability, including inducement,” Google writes.
Google states that it is apparent that isoHunt doesn’t fall under DMCA safe harbor protection, since it failed to meet several of the requirements, so a detailed discussion and conclusions with regard to liability and the DMCA are not needed.
“In short, the question whether a defendant is eligible for DMCA protection is distinct from whether the defendant is liable for inducement under Grokster. Those two questions should not be conflated, as the district court appears to have done,” Google writes.
Google further addresses various issues that they feel are not needed to arrive at the verdict, but can negatively impact other services on the Internet. Several of these conclusions are the result of suggestions made by the MPAA movie studios, which Google claims are misplaced and incorrect.
Although isoHunt’s owner was initially happy to see that Google got involved in the lawsuit, the end result is a huge disappointment. Google clearly doesn’t agree with the assessment of isoHunt that they are ‘just like Google’.
Google taking part in the MPAA vs. isoHunt appeal is mainly done in their own interest, but in doing this they make some valid points which are important for torrent sites also.
Google notes that the DMCA comes before any secondary infringement liability, such as inducement for example. In its ruling the District Court said that inducement disqualified isoHunt from DMCA safe harbors, which is strange as that completely defeats the purpose and definition of “safe harbour” for online service providers.
TorrentFreak contacted isoHunt owner Gary Fung for a response. Fung appeared to be disappointed, but couldn’t comment on the implications the Google brief could have. His lawyer Ira rothken was asked for a comment as well, but didn’t respond. It is now up to the Appeal Court to decide whether Google’s suggestions and comments will be taken into consideration.