IsoHunt Will Take DMCA Safe Harbor Fight to the Supreme Court

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In March, the Ninth Circuit declared that Canada-based BitTorrent search engine isoHunt is not entitled to protection under the safe harbor provisions of the DMCA due to its conduct many years ago. IsoHunt filed a petition for a rehearing before a jury, but yesterday a Ninth Circuit panel unanimously rejected it. Isohunt lawyer Ira Rothken informs TorrentFreak that the right to a jury trial is protected by the constitution and isoHunt is now in the process of requesting a Supreme Court review.

In 2010, a district court ordered isoHunt to implement a filter to exclude movie and TV show-related terms from its search engine.

Despite running the filter for some time the Canada-based torrent search engine hoped to have the decision overruled on appeal, but in March this year that aim suffered a setback.

The Ninth Circuit upheld the decision of the lower court, stating that since isoHunt had previous knowledge of some infringing activity, the site loses its DMCA safe harbor protections across the entire platform.

Concerned by the ruling, early April isoHunt founder Gary Fung’s legal team filed a petition for a re-hearing before a jury, arguing that the Ninth Circuit decision will chill innovation and threaten free speech online.

Later that month the case attracted the attention of Google. The company has concerns that some of the wording in the Ninth Circuit ruling will have implications for its business too.

In a brief filed at the Appeals Court, Google explained that if the Ninth Circuit ruling is interpreted too broadly in future, all service providers could lose their DMCA safe harbor protections leading to a chilling effect on innovation.

Despite the support, for now isoHunt has to deal with another setback. Yesterday the Court of Appeals for the Ninth Circuit denied Fung’s appeal for a rehearing.

“The panel has unanimously voted to deny the petition for panel rehearing. Judges Pregerson and Berzon have voted to deny the petition for rehearing en banc, and Judge Fisher has so recommended,” Wednesday’s decision reads.

Nevertheless, the battle will not end here. Isohunt’s legal team believes that clarification is required if search engines are to conduct their businesses with certainty in future, and they’re prepared to go to the highest court in the land to obtain it.

“IsoHunt is in the process of requesting review by the United States Supreme Court,” isoHunt lawyer Ira Rothken informs TorrentFreak. “The right to a jury trial is protected by the US Constitution and shouldn’t be usurped by gestalt rules which provide little guidance on how search engines should conduct themselves.”

“Here the court has left the world wondering what type of causation analysis ought to be done – if a search engine has done some alleged bad things five years ago are they still responsible today with a different interface for all user infringements under a civil inducement theory?” the California-based attorney questions.

“There needs to be guidance on legal standards and rules beyond Judges acting in a balkanized and ambiguous manner. The status quo will have a chilling effect on internet development and lead to wasteful civil litigation,” Rothken concludes.


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