May last 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.
With the injunction, isoHunt saw no other option than to implement the filter, which they did. However, at the same time isoHunt owner Gary Fung filed an appeal at the Court of Appeals. Through the appeal, isoHunt hopes to reverse the permanent injunction and obtain a jury trial instead of a summary judgment.
In previous months both isoHunt and the MPAA filed their opinions on the case to the Court, and in February even the search giant Google added its testimony in the case.
Yesterday, the parties appeared before the thee-judge panel of the Ninth Circuit Court of Appeals to motivate their stance on the case. isoHunt was represented by long-standing legal counsel Ira Rothken, and the MPAA by their attorney Paul Smith.
MPAA v. isoHunt hearing
In its quest for a jury trial, isoHunt’s attorney argued that there is no evidence that his client and his websites induced specific acts of copyright infringement.
“isoHunt is a search engine. It does not host any copyrighted content, it only links to BitTorrent files. Any copyright infringement that could ever occur, would occur off-site, and leave isoHunt behind.”
“In this case a motion for summary judgement should never have been granted. The District Court made errors, both in terms of the inducement as well as the DMCA. It also issued an overly broad injunction,” Rothken said.
After having introduced some of the arguments, Rothken was interrupted by one of the judges who, in a display of modest curiosity, wanted to confirm that isoHunt was in fact a website.
“As I understand [stops and laughs]. I won’t pretend to understand, I didn’t know what a BitTorrent was until this case. The Internet progresses faster, I just got my iPad 9 months ago and it’s already obsolete,” the judge said.
“So with that caveat, my understanding is that at least with regard to your client, he had a site. He has a site right?” he adds, which isoHunt’s attorney then confirmed. The judge then went on to describe the isoHunt system and asked what element is missing to show a causal relationship between isoHunt and potential copyright inducements.
During the rest of his speaking time isoHunt’s attorney explained how there is no direct evidence that isoHunt’s actions actively induced copyright infringements. Furthermore, he explained that Gary Fung and his websites are protected under the DMCA.
After 20 minutes MPAA attorney Paul Smith took the stand. He argued that “the record makes amply clear that the District Court had every reason to grant the summary judgement to the plaintiffs in this case on their claim of intentional inducement of infringement.”
“I think it’s important to understand here that the claim is a Grokster claim; intentional inducement by the creation of this entire set of websites that facilitated infringement of the plaintiffs copyrighted works on a massive scale.”
“The evidence that it was intentionally designed to do that is extremely compelling and indeed is undisputed. We heard a lot about the need for a trial this morning but there wasn’t a single material fact identified that was disputed in this record,” Smith added.
MPAA’s attorney then went on to explain why the plaintiffs believe the District Court was right, and why isoHunt does not deserve protection under the DMCA. During one of the interruptions, a judge made a call-back to Google, mentioning that the search giant was very worried about MPAA’s take on the law, as described by Smith.
When MPAA’s attorney was done the panel gave isoHunt’s lawyer a brief moment to reply and balance things out before the court adjourned.
Despite the earlier signs that not all judges may be that BitTorrent-savvy, the core issues of inducement and liability have become very clear during the hearing. The important question for isoHunt (and Google and other web-services) in the coming months is whose version of the truth is more compelling to the judges. In this, the judges will be assisted by several technical analyses of legal experts.
Commenting to TorrentFreak, isoHunt founder Gary Fung previously said that a trial by “jury of one’s peers” would be fitting in more way than one. Whether the judges will agree with him will become apparent in the near future.