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…