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isoHunt, Torrent Searches and Copyright Law, Simplified.

June 20, 2010

How can a BitTorrent search engine be held liable for copyright infringement?  It doesn’t make any copies, and it doesn’t host any files for download.  IsoHunt, a Canada-based search engine, is fighting the motion picture industry over these very issues.   In this post, I will try to explain the case against isoHunt.  This is the short version; see the long version after the jump.

In short, because of a legal principle called vicarious liability, copyright holders can sue companies for inducing others to infringe on copyrights.  Here, isoHunt makes money by selling advertising.  Advertisers pay for access to a websites users.  Users only visit isoHunt for one thing: downloading files (legally or illegally). 

There is an exception if a service has a significant number of uses which do not infringe copyrights, but isoHunt probably does not fit that category.  The majority of the content shared through isoHunt is copyrighted. 

There is little difference between isoHunt and other peer-to-peer search engines that have already been shut down, despite technological arguments to the contrary.  BitTorrent operates through what are called “trackers.”  IsoHunt searches those trackers.  Some argue that because .torrent trackers only serve to connect users, not to host the files, searching them is somehow more acceptable than searching users’ files directly.  The results, however, are the same.

Further, isoHunt doesn’t qualify for exemption under the Digital Millennium Copyright Act.  First, isoHunt is based in Canada, not the U.S.  Second, isoHunt, though a search engine, does not meet the requirements placed on search engines under the DMCA to be exempt from enforcement.

The bottom line: while isoHunt and EFF will likely put up a good and long fight, ultimately, under current copyright law, isoHunt will likely be found liable for the infringement of its users.

Is this the right result?  Probably.  While isoHunt provides an undeniably valuable service, it does so knowing that most of the .torrent files it indexes lead to copyrighted works.

Vicarious Infringement

Generally speaking, those who operate these search engines are not directly infringing on anyone’s copyright.  That is, they are not illegally copying any work.  Rather, they only create an index which allows users to search for a particular .torrent file.

This is a big distinction.  IsoHunt never copies copyrighted materials, never distributes them, and never posts them on the internet for download.  So how can torrent sites be liable for copyright infringement?  The answer is vicarious liability. 

Vicarious liability allows one individual to be held liable for the tortious (illegal) actions of another.  Usually, this would be applied to an employer when, for example, an employee delivery driver hit a pedestrian.  In copyright, vicarious liability extends further, to those who support others’ efforts to infringe on copyrights.

In 1984, the Supreme Court wrestled with the complexities of vicarious infringement when the film industry challenged the creation of Betamax recorders.  The Court decided that Sony could not be held liable for the manufacture of personal video cassette recorders simply because buyers might use them to illegally copy copyrighted videos.  In a split decision, the court created a new test for vicarious infringement: the significant non-infringing use test.  This means that if a device has a plethora of uses which would not infringe on someone’s copyright, the manufacture of the device cannot be held liable for those uses which do infringe.

Later, in 2005, the Court refused to extend the same logic to search engines for peer-to-peer file sharing.  Remember Grokster?  It was a little like Napster and a lot like Kazaa.  The Court in the Grokster case held that when a company takes active steps to induce users to infringe on copyrights, it is liable for the actions of those users.  Here, isoHunt markets itself as a better way to search for .torrents than say, Google.  In fact, isoHunt searches only .torrents and provides statistics which enable users to get the fastest downloads.  Additionally, most of the content shared via isoHunt searches is copyrighted.  Even though a standard search engine like Google or Bing might also facilitate access to copyrighted content, there are substantial non-infringing uses for those programs, and those companies do not endorse or induce such behavior.

Technological Hurdles to Infringement

The way BitTorrent files are shared poses a problem for copyright holders.  Generally, if a web site allows users to share files, and hosts a copyright film or song on its website for download, the website is a vicarious infringer (subject to DMCA exceptions).   [Note that on the BitTorrent home page, the main banner displays as background images the covers of many copyrighted films including The Simpsons Movie, Blade Runner, and Harry Potter]

BitTorrent removes the middle man.  With .torrent files, the site facilitating the transfer of content from one user to another is known as a “tracker.”  The tracker does not host the file itself, but rather a very tiny metadata file which allows users computers to find each other to share the file directly.  Think of a normal site as a typical bulletin board where people post flyers and articles advertising their services or events.  Now, think of a tracker as displaying only the contact information for the person who posted the information.  A tracker is more like a phone book than a bulletin board.

IsoHunt, and other .torrent search engines, are even one step further removed.  IsoHunt only allows users to search the trackers, not the other users files.  While isoHunt provides some additional information, such as how many people are downloading and uploading the file associated with a specific tracker, it does this without hosting content, or directly linking content.

For the movie industry, or any copyright holder, the distinction between Grokster, a peer-to-peer program allowing direct file sharing between users, and isoHunt, a web-based search engine allowing access to files which allow direct file sharing between users, is moot.  The end result is infringement, and the service is specifically intended to facilitate it.

…And What About the DMCA?

IsoHunt does not qualify for exemption under the DMCA safe harbors.   IsoHunt is hosted in Canada.  Even if it were hosted in the U.S., however, it would not qualify for the safe harbors provided to search engines under the DMCA.

For those of you unfamiliar, certain classes of service provider are exempt from vicarious infringement enforcement.  Search engines, file hosting services, and ISPs are exempt, provided they meet the criteria in the statute.

In order to be exempt under the DMCA, a search engine like isoHunt is exempted only if: 1) it has a repeat infringer policy whereby people who infringe copyrights repeatedly lose their privileges to use the site, 2) it has a notice and takedown procedure whereby copyright holders can notify the service provider and have infringing content removed.

While isoHunt has a written policy which conforms to these standards, in practice, that is not sufficient.  The DMCA does not eliminate vicarious liability.  Here, infringing content was blatantly obvious.  District Court opinions have suggested that while small red flags might not be sufficient to eliminate DMCA protection for the service provider, blatantly apparent and sweeping infringement would be.  As the isoHunt judge put it: “upwards of 95 percent of all dot-torrent files downloaded from Isohunt’s three websites returned infringing material or works that are “at least highly likely to be infringing.”

IsoHunt’s main defense here is that the takedown notices from the motion picture industry were too broad.  The notices sought to block certain keyword phrases from being searchable on the site.  IsoHunt understandably objected.  But isoHunt’s refusal to cooperate on the basis of a non-DMCA-conforming notice, or a notice that doesn’t meet with isoHunt’s internal requirements, is flawed.

Because isoHunt doesn’t qualify for a DMCA safe harbor, it cannot fall back on the DMCA to eliminate its vicarious liability for the infringement of its users.

Sorry for the lack of citations in this argument, but hell, this is a blog not a law journal, right?

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3 Comments leave one →
  1. ISO 9000 permalink
    September 22, 2011 3:37 am

    Hey, very nice site. I came across this on Google, and I am stoked that I did. I will definately be coming back here more often. Wish I could add to the conversation and bring a bit more to the table, but am just taking in as much info as I can at the moment.

    iso 9000

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