isoHunt and MPAA Debate Legality of BitTorrent Sites
Written by Ernesto on May 04, 2008The legality of BitTorrent sites has always been highly debated. As of today, no court has ever ruled that a website offering .torrent links is legal or not. This might change soon, as isoHunt and the MPAA once again clash in court.
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…
Previously: Nine Inch Nails Give Away New Single on Facebook
Next: File-Sharer Convicted in Sweden’s Biggest P2P Case
93 Responses
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First!
“due” google. otherwise good article.
“Perhaps the MPAA should due Google next?”
You mean Sue?
I completely agree w/ isoHunts argument, they are simply pointing ppl in the right direction using torrents and a client that can understand the metafile. Google uses a web-browser as their “client”..
[quote comment="372688"]First!
“due” google. otherwise good article.[/quote]
Thanks ;)
I think what it comes down to is if the site is willingly providing copyright infringing content or not.
You could argue that mininova is so big and has a fair amount of media that has no copyright that they could get away with simply saying “we host the torrent files but we do not know what they are and if asked will remove any if it infringes on your copyright”
but then if you look at some sites which go out of the way to say “get the latest movies here etc etc” then they will have a hard time as they are clearly knowingly aiming to infringe on someone’s copyright.
I’m all for downloading stuff as personally I prefer to get it for free than to pay for it but realistically you are breaking the law, whether it’s morally wrong or not under the current law it’s illegal, and when sites that knowingly set themselves up as a site to download warez I don’t really think they have a leg to stand on in court.
“Perhaps the MPAA should sue Google next?”
Actually, my fear is, that at some point, they WILL. Well, if not sue them, but they could “come up with an agreement” or something - just think of the censorship agreements with China - Google are not always the “friendly hackers” we think them to be.
[quote comment="372752"]“Perhaps the MPAA should sue Google next?”
Actually, my fear is, that at some point, they WILL. Well, if not sue them, but they could “come up with an agreement” or something - just think of the censorship agreements with China - Google are not always the “friendly hackers” we think them to be.[/quote]
Actually, I’d be keen on the MPAA going after Google. This isn’t some individual or small group; they have buckets of cash to take a proper fight to them. Of course, yea, if they cave thats a whole different story…
It’s a stretch to compare Google to torrent sites. Sure, all they do is index, but most of the people who are using those trackers are distributing copyrighted materials. This is different from Google, where most traffic involves people looking for porn. If the majority of Google traffic involved people doing something illegal, they would probably be in trouble as well.
The only hope for bittorrent trackers is to move their servers to countries that do not regard their activities as illegal and then pray that those countries don’t change their minds.
Google will honour a DMCA takedown request where the party can show it is their copyright being infringed, Isohunt does the same. The MPAA may or may not make such requests to Google, who of course would comply, it seems however they make no such requests to Isohunt and instead just chose all out legal action, which hopefully backfire ,Isohunt would win and the future of all bittorrent site would be secured under the same precident. If however Isohunt lose this case, it will only be a matter of time before the MPAA and others use the same legal argument against the other major bittorrent sites.
why with google when yahoo and msncan be used as torrent search feature. in that case mpaa should sue yahoo and microsoft
@7
isohunt doesnt have a tracker. they are only indexing torrents that point to other peoples trackers!
MPAA argument will fail at some point because the law as it stands cannot be upheld.
Current case law holds that if you benefit from copyright infringement then you are guilty in civil law of copyright infringement.
Isohunt’s revenue comes from advertising and the more users it has the more money it makes. Mainly, users are hunting for copyright content. So although isohunt indexes a lot of non copyright content because of it’s business model it benefits from copyright infringement.
A judge could insist that they use a white list of content. They would then have to close as their business model depends on advertising. Users want content.
It is only DCMA that prevents this argument being applied to ISPs and cable and DSL.
However even those not covered by DCMA are not proscecuted as there are so many of them.
The law does not work.
And some such as decentralised friend to friend network like Dargens http//:www.Dargens.com are outside this law.
Their business model depends on communication between members not listing copyright content.
As it is a private network where member connect to friends but share with everyone no transactions are public.
So if there is any breach of civil law it happens in private like friends lending each other CDs.
Also, as it is private it is different in nature to the public distribution of copyrighted content.
In fact it is closer to word of mouth advertising.
I do hope isohunt win their case but even if they don’t it’s good to know there are fast friendly alternatives ready to take the strain in the US and UK.
[quote comment="372851"]Google will honour a DMCA takedown request where the party can show it is their copyright being infringed, Isohunt does the same. The MPAA may or may not make such requests to Google, who of course would comply, it seems however they make no such requests to Isohunt and instead just chose all out legal action, which hopefully backfire ,Isohunt would win and the future of all bittorrent site would be secured under the same precident. If however Isohunt lose this case, it will only be a matter of time before the MPAA and others use the same legal argument against the other major bittorrent sites.[/quote]
You cannot sue someone who produces kitchenknifes because most of them is used for violence.
Ooops sorry wrong quote. It was the post over the one i quoted.
Sorry.
Actually, sueing google is not a bad idea.. would totally free up the whole P2P thing… if given a chance I would sue google… yes you read right! And I aint a anti p2p scum either..!
Heres my logic, i make some content and own the copyright to it, X number of torrent sites take the content and i find it via google… i sue google via the same arguements that the mpaa are making, google is the 100 ton gorilla compared to me and my legal budget so nobody will be all that surprised that i drop the suit… google wins and sets precedent! All future sites can quote my case and how google was let off :)
this would also work if some people sued some torrent site and then backs off… someone needs to set a good precedent for us P2P’ers.
Problem is getting the right person / organization to do so… would love to do it, but dont have the cash… anybody out there??
http://www.ezee.se/
[quote]If however Isohunt lose this case, it will only be a matter of time before the MPAA and others use the same legal argument against the other major bittorrent sites.[/quote]
Also remember, on the other hand isohunt and trackers win… you are going to see an explosion of indexers and trackers… future generations would look back and laugh at the handfull that we have now.
Heck, a minimum of 10% of all who read this will start their own, including me!
http://www.ezee.se/
@7
OK. But, those indexes themselves are used primarily to distribute copyrighted material.
@10
Most kitchen knives (and guns–another common analogy) are used legally. The majority of bittorrent traffic is used to distribute copyrighted material. The majority of people using bittorrent trackers are engaging in an activity that is considered illegal in most developed countries. This is not the case with Google.
I hope isoHunt, OiNK and TPB have a better arguments than “we’re just like Google!” It’s hard to imagine even a Swedish judge being impressed by this analogy, let alone a British magistrate or a U.S. jury.
In most places its legal to buy a bong. The head shop doesnt get taken to court of some dude gets arrested using it to smoke pot does it? Just because ’some’ people use bittorrent for illegal file sharing does not mean that bittorrent sites have or should any responsability over what they users do with it. The ‘We’re just like Google’ statement is a perfectly legitimate argument in so far as the same .torrent files can just as easily be found via Google and that would be true wether Isohunt got shut down or not. This is just as much about proving that bittorrent sites enable infringement as it is the MPAA trying to prove that .torrent files themselves enable infringement. If that happens, not only are torrent sites at risk, but pressure can then be levied against ISP’s to block the download of .torrent files as well as the bittorrent protocol.
[quote comment="372832"]It’s a stretch to compare Google to torrent sites. Sure, all they do is index, but most of the people who are using those trackers are distributing copyrighted materials. This is different from Google, where most traffic involves people looking for porn. If the majority of Google traffic involved people doing something illegal, they would probably be in trouble as well.[/quote]
Think about that a bit. Technically, it is illegal for minors to have access to pornographic material. Now, if all 15-and-under males in the world with easy and frequent access to Google without anyone watching over their shoulder were to tell the truth, you’d find that a very large number of them are “illegally” “downloading” pornographic material. Then again, laws on decency and such in this country are at least as disgustingly backwards as the state of our Telecom industry, broadband internet accessibility, availability, and speed/price ratios, and our government full of religious fanatics.
One bit to add to that :) Get out while you can, before the rest of the world grows a brain and gets rid of this piss-poor excuse for a country :)
Heres my logic, i make some content and own the copyright to it, X number of torrent sites take the content and i find it via google… i sue google via the same arguements that the mpaa are making, google is the 100 ton gorilla compared to me and my legal budget so nobody will be all that surprised that i drop the suit… google wins and sets precedent! All future sites can quote my case and how google was let off :)
sorry jag, good idea but that’s not how legal precedent works. there has to be “a final judgment on the merits,” you’d have to see the case through and lose it in a really broad way for torrent sites to use the precedent.
@17
Troll, I have to admit–you have a good point with your bong analogy. Most bongs are indeed used for illegal purposes, although they can be sold legally. Maybe TPB and the rest will begin employing the Bong Defense :)
An important difference though, is that bittorrent trackers are generally being pursued by civil, rather than criminal proceedings so the standards are not quite the same.
In addition, if some guy wants to smoke weed via a bong, there are no aggrieved parties. Bong smokers are not a hot topic right now. Unfortunately for bittorrent, there dozens of companies and organizations in multiple industries that consider copyright infringement to be a mortal threat to their existence, so it is an issue.
@18
While I’m sure that many teenagers are searching for porn by using Google, that is still not the majority of Google usage. It would not be difficult for Google to convince a judge or jury that their services are mostly used in a legal manner and that illegal usage is a minority of traffic. Bittorrent trackers would have some difficulty making the same argument.
i would like to see the MPAA take on google…
this gives me an idea….
hey anyone know the email address of the MPAA? i think they might finally meet their match with ggoogle
but know i only have to find out how to initiate this fight….
but yeah i would PAY to see a fight between google and the MPAA
TorrentSpy used a similar analogy and lost. So why do the same?
It is better to show how your in the right. And leave it at that. imo
I never like the analogy so and so does it.
please replace “know” with now…and excuse my poor grammar and unwillingness to look over posts before posting
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