In May this year the U.S. District Court of California issued a permanent injunction against BitTorrent search engine isoHunt.
The injunction is 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.
The filter has now been implemented for a few months and prevents a list of film related phrases from showing up in the search results. In addition, isoHunt changed the appearance of its search engine for U.S. users, such as removing the list of most searched for phrases on the site. Although the site’s owner actively protested this form of commercial censorship, the court left isoHunt with no choice.
However, isoHunt does not intend to be defeated so easily and has decided to take the case to the Ninth Circuit Court of Appeals. There, it hopes to get the law on its side and quash the previous District Court ruling.
The BitTorrent search engine has now filed (pdf) its opening appellate brief to the Ninth Circuit Court of Appeals, requesting for better protection from such mass copyright lawsuits for both isoHunt and other search engines alike. The counsel of isoHunt argues that if the permanent injunction holds up, other search engines such as Google may face similar censorship threats as well.
“This case is about the freedom to search on the internet and whether web search engines have to preemptively censor user generated links and torrent data files or be subject to keyword filtering,” said isoHunt counsel Ira Rothken.
The appellate brief addresses the various misunderstandings and misjudgments that the defendant believes were made by the District Court. One of the questions is whether the keyword filter violates the First Amendment Free Speech rights.
In addition, it is questioned “whether the District Court exceeded its territorial jurisdiction in ordering Defendants, Canadians operating in Canada, to ‘filter’ communications taking place entirely within Canada.” In other words, is a US court permitted to order censorship measures for a Canadian company?
Among other things, isoHunt further questions whether it was rightfully excluded from the “safe harbor” provided by the Digital Millennium Copyright Act (DMCA) and whether the common law that resulted from the Grokster verdict applied to a BitTorrent search engine.
isoHunt’s Appeal Brief
Instead of being equated to P2P applications that actually touch, distribute, or copy copyrighted material isoHunt should be seen a regular search engine. After all, most torrent files can be downloaded through Google as well, the defense argues.
“Defendants showed that 95% of the torrents available on their system were also available on Google or Yahoo!,” the brief reads.
The opposition against the permanent injunction does not mean that isoHunt is not willing to make concessions. Instead of a keyword filter, isoHunt’s owner would rather implement a system that bans torrent files based on “infringing” hashes. A similar system is already in use for a partnership the site has with the US Attorney General to ban child porn.
The Ninth Circuit Appeal Court has now to decide whether the permanent injunction will stay in place or not. This decision will be a crucial one to the future of isoHunt and possibly other search engines such as Google, Yahoo! and Bing.