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The Courts

9th Circuit Affirms IsoHunt Decision; No DMCA Safe Harbor 211

Posted by timothy
from the disproportion-nation dept.
crankyspice writes "The federal Ninth Circuit Court of Appeals recently affirmed, in Columbia Pictures Industries v. Fung (docket no. 10-55946), the summary judgment and injunctions against Gary Fung and his IsoHunt (and 3d2k-it) websites, finding liability for secondary copyright infringement for the sites' users' BitTorrent (and eDonkey) file sharing, under the 'inducement' theory (set forth by the Supreme Court in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd. , 545 U.S. 913 (2005)). The injunctions were left largely intact, with modifications required to make it more clear to the defendants what BitTorrent (etc) related activity they're enjoined from." Bloomberg has a short article on the case, too.
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9th Circuit Affirms IsoHunt Decision; No DMCA Safe Harbor

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  • The law is an ass (Score:5, Insightful)

    by fnj (64210) on Saturday March 23, 2013 @07:04PM (#43260257)

    And it is a bought and paid-for ass.

    • by westlake (615356) on Saturday March 23, 2013 @07:49PM (#43260471)

      And it is a bought and paid-for ass.

      The geek's explanation for his every failure in law, politics and government is bribery.

      • by Nerdfest (867930) on Saturday March 23, 2013 @07:57PM (#43260501)

        It's actually quite a good default position, with incompetence only slightly behind it.

        • Re: (Score:2, Interesting)

          by westlake (615356)

          It's actually quite a good default position, with incompetence only slightly behind it.

          The number of federal judges impeached for all causes since 1904 is 10.

          Two were acquitted, Six were removed. Two resigned. Impeachment in the United States [wikipedia.org]

          NEW ORLEANS - U.S. District Judge Robert F. Collins was convicted yesterday of scheming to split a $100,000 bribe from a drug smuggler, making him the first federal judge in the 200-year history of the judiciary to be found guilty of taking a bribe.

          Federal Judge First Ever Convicted Of Taking Bribe [nwsource.com] [June 30, 1991]

          When confronted by fact, the geek retreats into fantasy,

          • Re: (Score:3, Insightful)

            What exactly do you call the case of Clarance Thomas not recusing himself from the decision on the AFA? It may not be bribery, but you'd be hard pressed to argue that it was all honest or just. Or how about the case of the Kids for Cash scandal? (http://en.wikipedia.org/wiki/Kids_for_cash_scandal ) Not a federal judge, I grant you, but still a judge. And that's just two examples off the top of my head. I don't think there's necessarily much direct bribery going on... but that's not the same thing as say
          • by schwit1 (797399)

            The problem is laws paid for by special interests or imprecise laws.

            Judges for the most part are unelected so you don't want them making law. It's also not their job.

          • Your wasting your breath, people (geeks or otherwise) tend to project their own weak principles onto others. The rich tend to bitch about environment and consumer laws, file sharers bitch about IP laws, I bitch about laws forbidding me to smoke weed. Nobody likes the law when it disagrees with them. Many people rationalize that by claiming judges must be for sale because deep down they know money is the only thing that will tempt them to break their own principles.
          • by Colonel Korn (1258968) on Sunday March 24, 2013 @07:01AM (#43262261)

            It's actually quite a good default position, with incompetence only slightly behind it.

            The number of federal judges impeached for all causes since 1904 is 10.

            Two were acquitted, Six were removed. Two resigned. Impeachment in the United States [wikipedia.org]

            NEW ORLEANS - U.S. District Judge Robert F. Collins was convicted yesterday of scheming to split a $100,000 bribe from a drug smuggler, making him the first federal judge in the 200-year history of the judiciary to be found guilty of taking a bribe.

            Federal Judge First Ever Convicted Of Taking Bribe [nwsource.com] [June 30, 1991]

            When confronted by fact, the geek retreats into fantasy,

            You're claiming that the self policing system isn't corrupt because it doesn't result in many convictions? Is my sarcasm meter broken or did you seriously just try to make that argument?

          • by Qzukk (229616)

            Beautiful, beautiful strawman. *golfclap*

            While there are a few judges that cause problems [chron.com], the judge isn't the one dragging people to court, the judge isn't the one deciding what laws you broke, the judge isn't the one lying to the court.

            The real problem is the prosecutors, who are untouchable and not held to account for their actions when they railroad innocent people and obstruct justice, even when their obstruction allows the guilty to continue killing. They tell the court that their DNA evidence is inc

        • Re:The law is an ass (Score:5, Interesting)

          by pdabbadabba (720526) on Saturday March 23, 2013 @09:50PM (#43260913) Homepage

          Hi. I work for a federal judge. My job is writing what are, in essence, draft opinions. I have long substantive conversations with the judge on virtually every opinion we issue. I have a lot of friends who do the same thing. So believe me when I say that if the judge I worked for, of if the judges my friends were working for were being offered bribes, I would definitely know about it. He isn't, and they aren't. Not even close. It just does not happen. Sorry.

          And let me add: we are very very good at our jobs. We aren't perfect, and the law often isn't as clear as one would like. But suffice it to say that nine times out of ten, if you aren't a lawyer and you think a decision is crazy or wrong, the more likely explanation is that you just don't know the law that's being applied. It's definitely not bribery and it probably isn't even incompetence (at least, not on the judge's part.) And, having actually read the opinion and knowing something about the law, I can tell you that this case is no different.

          So how about this: before wildly casting accusations of bribery around, why don't you take a few minutes to actually read the opinion and then tell us what you think is wrong with it?

          • by tlhIngan (30335)

            So how about this: before wildly casting accusations of bribery around, why don't you take a few minutes to actually read the opinion and then tell us what you think is wrong with it?

            That's the problem - the opinion is long and boring, snappy headlines sell.

            Anyhow, isoHunt did the Google defense, which the judge ruled invalid as isoHunt was doing "editorial content" and pointing out specific torrents that were to be of interest. This invalidates any DMCA safe harbour because the site is no longer neutral -

            • by gd2shoe (747932)

              Anyhow, isoHunt did the Google defense, which the judge ruled invalid as isoHunt was doing "editorial content" and pointing out specific torrents that were to be of interest. This invalidates any DMCA safe harbour because the site is no longer neutral - the site operators were looking at the site and point out what might be of interest.

              DMCA safe harbour only applies when the site treats everything the same.

              Were they pointing out blatantly illegal torrents, or only legal and interesting torrents? Or maybe

          • Re:The law is an ass (Score:5, Interesting)

            by LordLucless (582312) on Sunday March 24, 2013 @05:55AM (#43262125)

            So believe me when I say that if the judge I worked for, of if the judges my friends were working for were being offered bribes, I would definitely know about it. He isn't, and they aren't. Not even close. It just does not happen. Sorry.

            And nobody's saying it does. Read the thread. I believe the originating sentiment is "the law is bought and paid for". That doesn't mean people are bribing judges; it means that people with money can drive the legislative process. The average net worth of first-term congressmen is almost four million dollars [cnbc.com]. "Lobbying" is a 3 billion dollars a year and growing [opensecrets.org] industry. Really, the question isn't "is the law bought and paid for?" it's "how can anyone reasonably expect such a process to generate just laws?".

            if you aren't a lawyer and you think a decision is crazy or wrong, the more likely explanation is that you just don't know the law that's being applied.

            People who are judging the law aren't doing so on the basis of which laws were infringed, they're doing so on the basis of justice - which, increasingly, does not overlap with the legal technicalities.

            • I think what you're saying is true for a lot of /.ers, but there are definitely a lot out there who think that judges are taking bribes. This is plain to see whenever any legal decision is discussed here. I don't think it's clear whether the original sentiment I'm responding to had to do with judges or legislators. I don't have much informative to say when it comes to legislators. I think what you've said basically sums it up. But when it comes to judges, on the other hand, I have a perspective that I think

              • by Christoph (17845)

                Those mistakes I think any judge has made are due to arbitrary personal bias, not bribes or even systemic bias. The exception might be bias in favor of attorney-defendants, or protecting the system.

                Judicial reform appeals to me, but the immediate problem is where do you get "better" judges? You would have to offer more pay and/or a reduced workload, which means an increase in taxes (virtually if not literally impossible). Our current judges reflect our current society, they have merit but also flaws. They c

          • So believe me when I say that if the judge I worked for, of if the judges my friends were working for were being offered bribes, I would definitely know about it. He isn't, and they aren't. Not even close. It just does not happen. Sorry.

            look just a few comments up for the counterexample

            It may be rare (or it might be rare for there to be a conviction), but it can in fact happen, despite personal anecdotes to the contrary.

            • Well, yes. Obviously I cannot claim that it literally never happens. But I can tell you that, in my experience, it doesn't. Since I am in a position to observe a great deal of what goes on in federal litigation (including many very high-stakes cases) I can say with some confidence that corruption is extremely unlikely to be the explanation for the outcome of any given case. You may call this an anecdote and, of course, it is. But it's much more evidence than you (or, I'd wager, virtually any other /.er) hav

      • The geek's explanation for his every failure in law, politics and government is bribery.

        As I understand it: The average citizen gets information about issues and candidates from one of the major TV news networks. A news source can refuse to cover a particular issue or a particular candidate's campaign. This means the citizen won't be made aware of it. So if TV news networks fail to cover developments in copyright law or candidates who have expressed interest in a balanced approach to copyright, they can influence the behavior of voters. Now guess what conglomerates own the major TV news sources [pineight.com] and would have a reasonable motive and opportunity to exploit their conflict of interest: the parent companies of five of the six studios that make up the MPAA.

        • by kamapuaa (555446)

          Right. Most people get all their information from a single TV channel, and will never change this TV channel (perhaps their remote is broken?)
          TV stations freely ignore candidates they don't like, the way FOX never mentions Obama.
          I'm not sarcastic, I can't help talking this way!

          • It doesn't matter, the same few people own all the mainstream channels. Some people actually go out of their way to find the truth, but most people will be spoon fed their news by these few people. In the cases their interests conflict you can infer something from the discrepancies between them, but most of the time their interests converge.
          • Most people get all their information from a single TV channel, and will never change this TV channel

            You'd be surprised. In my extended family survey sample, at least one householder sticks to MSNBC because she likes being told what she wants to hear. I've made her fully aware that she treats the issues on which the Democrats and Republicans as a sports rivalry where she roots for the Democrats, and she told me she enjoys it. Besides, even if they do change channels, it's from one channel that doesn't adequately cover developments in copyright law to another channel that doesn't adequately cover developmen

      • Define bribery (Score:5, Insightful)

        by Anonymous Coward on Saturday March 23, 2013 @08:50PM (#43260715)

        Billions of dollars go into 'lobbying' each year, that's not money required to hire the people to express the opinion, that's money funnelled into the political machine directly. With PAC funding, that's pretty much money in the pocket, they can do with PAC money whatever the candidate wants. That money is a bribe in all but name.

        The problem here is, the word bribery has lost its meaning because the crime has largely been legitimized.

        Geeks make big play about Citizens United, but that just *increased* the bribery by allowing companies to openly bribe politicians.

        So yes, bribery it is. Here the copyright holders have a legitimate complaint, but instead they're attacking the third degree from it. Instead of going after the copyright infringement, or the torrent tracker, they're going after a search engine of the torrent trackers. Twice removed from the offense. To drive it through they're conflating the infringement the ISOHunt guy did with the search engine.

      • by Fjandr (66656)

        Success in politics is due largely or entirely to bribery, in one form or another.

  • by Anonymous Coward

    before the record and film industries go after Google [google.com] and its competitors. [bing.com].

    • by tepples (727027) <tepples@[ ]il.com ['gma' in gap]> on Saturday March 23, 2013 @07:11PM (#43260289) Homepage Journal
      It's about whether you advertise the ability to use a particular service to infringe. Grokster did, and IsoHunt did, according to the article. Does Google?
      • by X.25 (255792)

        It's about whether you advertise the ability to use a particular service to infringe. Grokster did, and IsoHunt did, according to the article. Does Google?

        Hahaha.

        So, if I don't advertise that I'm dealing crack near school, I should be safe?

        Got it.

        • So, if I don't advertise that I'm dealing crack near school, I should be safe?

          I fail to see how your analogy applies. There's a difference between failing to qualify under a safe harbor statute and no safe harbor statute existing in the first place. These providers claim safe harbor under the OCILLA statute for operating an automated search system. The movie studios convinced the Court of Appeals for the Ninth Circuit that the safe harbor does not apply to any provider that advertises using the titles of specific works whose copyright owners have not allowed them to be made available

  • What does that even mean?

    I am so glad I never became a lawyer like my mother wanted me to.
    • Re:Huh? (Score:5, Informative)

      by Pinhedd (1661735) on Saturday March 23, 2013 @08:47PM (#43260693)

      The DMCA Safe Harbor provision is what allows sites like Youtube to operate. Since Youtube is a fully automated site in which users upload their own content without approval from Youtube on a case-by-case basis, Youtube does not have full control over the content of their website in real time. Without the Safe Harbor provision, any copyrighted material that appears on Youtube would constitute unwillful copyright infringement by Youtube regardless of who put it there. The Safe Harbor provision shields them from primary and secondary liability.

      However, obtaining the benefits of the DMCA cannot be done without also adhering to the requirements of the DMCA and the OCILLA (the legal name for the Safe Harbor provision). Several of the requirements set out by these acts include making a good faith effort to prevent copyrighted content from being uploaded or inducing access to copyrighted content. In short, site operators have to perform at least some level of self-policing in order to obtain protection under OCILLA.

      In the case of ISOHunt, it's possible to search by various categories including movies, music, applications, etc... as well as view latest releases by the same categories. A quick look at the top torrents, most recent torrents, top cross indexed torrents, and top searches show that the site operators made no effort to prevent copyrighted content from being made accessible.

      The court ruled against them not because they engaged in direct infringement themselves, but because they promoted infringement and profited from that infringement. If they wanted the courts to take them seriously, then they shouldn't have displayed "aXXo" and "jaybob" as the top searches on the front page for years on end, especially when those searches yield infringing results. Of the top 1,000 searches on ISOhunt.com right now all of them are in search of either copyrighted content, or downright illegal content.

      • Thank you. Everything is clear now and I've also learned why Youtube hasn't been closed down which is something I've often wondered about.
        • Re:Huh? (Score:4, Informative)

          by Pinhedd (1661735) on Saturday March 23, 2013 @09:28PM (#43260833)

          Yup. Youtube has a massive number of programs and features, both automated and manual, which are purpose designed to handle copyrighted content. Users are still figuring out novel ways to get around them (such as mirroring a scene from a movie) but Youtube's Copyright handling is the best that I've ever seen and goes way beyond that required by the DMCA

          • Define "best"

            Is it best because a user making a legitimate parody or review is likely to get a strike on their account because the automated ContentID system cannot tell the difference between a straight copy and what ought to be fair use?

            Is it best because hateful crazies can get your account closed with a flood of phony copyright complaints?

      • Re:Huh? (Score:4, Interesting)

        by swillden (191260) <shawn-ds@willden.org> on Saturday March 23, 2013 @09:37PM (#43260877) Homepage Journal

        In short, site operators have to perform at least some level of self-policing in order to obtain protection under OCILLA.

        Cite?

        It's been a few years since I read the law, but I don't recall any requirements for pro-active policing, only that operators take down allegedly infringing material when presented with a takedown notice, and that they may put it back up if they receive a counter-notice.

        • Re:Huh? (Score:5, Interesting)

          by Pinhedd (1661735) on Saturday March 23, 2013 @09:53PM (#43260929)

          The service provider must have a terms of service which includes provisions for account suspension and termination for repeat offenders. Simply having a TOS isn't sufficient, they also have to "reasonably implement" it. This can be found under 17 USC 512(i). The policing doesn't necessarily have to be pro-active, it just needs to be active. If a plaintiff can demonstrate that a service provider's TOS is merely a façade and that the service provider is not living up to their obligations under the OCILLA then that may help their case.

          If I recall correctly, something along these lines was used against Megaupload (don't quote me on that, I'm not overly familiar with the case).

  • That's basically what this ruling says. Sure it targets a specific site, but it doesn't differ from the thousands exactly like it and the even bigger number almost like it.

    The core issue is that it states that by linking to resources that brings you closer to commit copyright infringement, you enable infringement and thus commit it yourself. All sites on the Internet do this - by choice or by proxy. Nothing is more than a few clicks away from any page so any click might bring you closer to something illegal

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