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9th Circuit Affirms IsoHunt Decision; No DMCA Safe Harbor
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.
And it is a bought and paid-for ass.
before the record and film industries go after Google and its competitors..
You're kidding, right? The law can be abused, sure, but so can the internet... and when people need a recourse, what else have they got but the law?
> The law can be abused, sure, but so can the internet... and when people need a recourse, what else have they got but the law?
Yet, that wasn't actually a problem for the first few decades. If people didn't like some part of the itnernet, they were free not to go there. Happened all the time on usenet. Somebody says something you don't like? Killfile 'em and that's that. The worst they could do is badmouth you, and nobody was stupid enough to believe slander about somebody posted to usenet, so that made fuck-all difference.
Then, one day, AOL came along, and at first tens of thousands, and then millions of people suddenly complained, "Hey, there are things here we don't like!!!one11!! Somebody should DO something!!" Then the legal system said, "Hey, waydaminnit! We don't have control over this internet thingy - people are doing things without our permission, and we MUST have control over it". And other legal systems agreed, because the internet was insulting their god / way of life / whatever.
And from there on, it's been downhill. The end game is NOT going to be something nice.
Why was it, again, that anyone ever gave the legal system any say over what happens on or with the internet?
It's been a long tome since the Internet was the geek's private playground.
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 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.
It sees more cases, so numerically there are more overturned. On average it's rulings are overturned about as often as any other circuit court in the country.
The 9th Circuit is a joke. It is the most overturned circuit in the country
Citation needed that a significantly larger percentage of the Ninth Circuit's decisions are overturned than those of other circuits. The fact is that the population of the Ninth Circuit is larger; therefore more cases will be brought. If more cases are decided, and the same percentage of them are overturned, a greater number of decisions will be overturned.
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.
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.
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
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.
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
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).
The law is the "alternative solution", SOE for human societies are warlords and demigods. And no "we" were not just fine without the law, wander outside your village and the kings men will kill you, stay inside the village and you will be counted as his property. Really mate, read some history or visit the Congo for fuck's sake because you have no idea what your world would be like without the rule of law.
And did you exchange a walk on part in the war for a lead role in a cage? - Pink Floyd.
Assuming you are not a troll, but merely have not bothered to think before writing, allow me to provoke you to exercise your grey matter.
If a group plan a bank robbery via Skype, would you say "Hands off our internet"? If someone blows up a building full of innocents by transmitting a code to an explosive device through a connection over the Internet, should that action be ignored because "We need a free Internet"?
The Internet is simply a communications medium. Like any other, it can be used to commit actual crimes. The problem here is not the state being able to govern acts committed using the Internet. The problem is the unjust copyright laws that outlaw what is no crime at all, and is in fact a boon to mankind: the mere copying of harmless and useful information, whether over the Internet or otherwise.
Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.
You seem to confuse the Internet with the physical world. Sorry to pop your bubble, but both things are very different. Anarchy never worked and won't likely ever work in the physical world. It worked very well for a decades in the Internet though.
In the same way a person using a phone can order someone to blow a building it can do through the internet. It is not motive to regulate and monitor phone calls neither to regulate the internet though. Many times the harm you do trying to prevent something is orders of magnitude worse than the thing you are trying to prevent. That is true regarding the "War against terrorism" and also regarding the attempts of Internet regulation.
Yet, that wasn't actually a problem for the first few decades.
Actually it was. The problem was that it wasn't as easily packaged and a lot of it was underground. Back in the day you could easily pirate games, music (and even on a 56kbps modem back then it was faster to download than to rip a CD), and whatnot but you need to be either very good at finding something or needed to know someone. From then on it was typically typing an IP address of an FTP server.
These days the damn things show up as the top results on a google search. The internet became a target when it became simple enough to use for the lowest common denominator, that is 6 year olds, grandmas, and RIAA employees.
You mean for all, what, 50 people on it for the first few decades?
Here it's Slashdot, BBC, Deutsche Welle, Al Jazeerah, ABC, SBS, Sydney Morning Herald, Pravda, South China Post. Sometimes I watch CCTV news as well. Occasionally, I read Pravda in an effort to keep my very rusty Russian language skills from entirely disappearing (okayyyyy... maybe a bit of Soviet nostalgia there, too; so sue me, already, for having grown up in the heyday of the Cold War, and let's get on with it).
I quit bothering very much with CNN or any other US outlet ten years ago... About 5 minutes after I saw how much news *didn't* get reported on the American sites/channels. Which was about 5 minutes after my first evening TV news experience in Australia with ABC, SBS, and BBC.
Shit, last time I was *in* the US, I watched SBS or BBC on my laptop for my news fix. Tried to watch CNN with my Dad, and the cognitive dissonance actually started making my head hurt.
Fortunately, he lives on a lake in Florida; he, his dogs, his fishing boat, and I found lots better things to do most of the time than watching television. :)
Moving away from the US was the smartest damn thing I've ever done in my life--it got me away from the mental poison known as American TV.
Il n'y a pas de Planet B.
Dunno if you're trying to be clever or what...
http://en.wikipedia.org/wiki/AXXo
http://www.jaybob.org/
Now pretend that it's a judge or DA who's just said this (and perhaps displayed the URLs on a screen in... um... I know, a courtroom!), and that it's not just your kindly old Uncle Zon talking at you over his Sunday morning cuppa.
Still feeling clever now?
Il n'y a pas de Planet B.
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?
________
Entranced by anime since late summer 2001 and loving it ^_^
The analogy of the internet being anarchy space is flawed at best. Sometimes it seems the analogy is usually used by people who want to show us how much better we're now off that law and order broke down on that anarchic space.
The internet of the old times was not an anarchy. It was a collection of tiny dictatorships. Big difference. An anarchy would imply that my limitations of what I could do are set by my personal point of view, my moral values and my decisions. That was not the case. If it was, then mostly because security was even more shyte back then than it is today. But essentially, it was YOUR server with YOUR rules in place when I went there. The only big differences to real life dictatiorships were that first, I could simply leave if I didn't like it, and second, I could make my own little dictatorship, with blackjack and hookers.
So please stop that myth of "anarchy internet space". It never existed.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
YOU are kidding, right?
When I have to choose between some 12 year old kid "abusing" the internet and some corporations abusing the law, the choice is obvious, at least to me. I base that choice on the damage either of them can do.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
Eternal September was why I changed my stance towards teaching people. I don't let them in my rose garden again.
The internet was our rose garden. We planted, we watered, we grew, we built our little gardens with joy and saw those little tulips and lilacs grow, were proud of them, showed each other what we did and handed over the seeds if someone wanted them. Was no problem either, we knew they'd take them and grow something nice outta them that we could come over and watch, and maybe take a seedling back home if we wanted.
Then came the eternal September people. We thought it's great. More people! More who want to come and grow! More who we could share our knowledge with and in mere months we could accomplish now what we thought would take decades! They saw our gardens and went "wow, cool, we wanna", and we were happy and, let's admit it, folks, kinda proud, too. We all were the geeks back in school, and now some of the cool kids called something we called cool. It was kinda nice, ya know.
Problem was, we let them into our garden, they went for our most wonderful rose bush that we took months to grow and that we were really proud of, grabbed it, uprooted it and took it with them because they wanted to have it in their garden. And that, let's face it, was not cool. I mean, we would have handed him a sprout, for free of course (even though we soon noticed we won't get anything back, but hey, call it development aid), but just going and taking away what we worked on was simply not cool, ok? So what did we do? The usual, of course, when nightfall came we went over their fence (provided they had one in the first place, most had no idea how to build one and didn't bother to ask), got our rose bush back and just for good measure we rearranged his seasoning herb field. Nondestructive, but it should send a message, don't mess with us, or we'll go out and pull a prank on you. We know more about gardening than you may ever think you could know, so play nice, sonny.
Did he heed the message? No, he cried bloody murder how we "violated" him and how he was defenseless against such bullying, and how the park rangers should finally come in here and make sure he's safe from us hooligans. We were kinda flabbergasted, ya know? Hey, buddy, dunno if you noticed it, but we were here first. YOU come to US, and now you cry for rules that limit us? Aside of this being anathema, you should... uh... hello officer? Yes? You don't say... really?
This is also where that alleged "anarchy" of the internet came in and this is where people started crying for laws because of "us bullies". Well, the history of the US ain't much different, when the settlers cried for the cavalry because the Indians wanted their land back...
But we were still kinda happy. Well, we now had to put camo nets over some of our gardens so the park sheriffs don't see them, but we arranged with it. We just made the next big mistake when we told the masses what we grew there and that they should be allowed to enjoy it as well. Big mistake. Suddenly everyone started growing and of course companies who live off selling you those herbs didn't enjoy that one bit. They didn't really mind us few doing it, but now that it had arrived with the masses, they noticed a big dip in their sales and that's when they started to send the sheriffs after us.
A little later they noticed how they could make even more money by not destroying our gardens but taking them over. They came into our garden, and again, some of us even welcomed them. I mean, it was kinda more convenient to buy your seeds in here instead of having to go out of it into the real world to get them. That soon changed when we noticed how they often used to steal our bushes and we couldn't even get it back because it suddenly belonged to them too. Again, we were taken aback but it only went downhill from there. We were evicted, we were bullied to the corner and we stood there, fists clenched in range but we could not fight back.
I, for myself, learned my lesson. Keep the masses away fro
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
No, You don't understand Anarchy at all. Anarchy is not the absence of rules. Anarchy is a system where there is no central planing or government. Nothing prevents private places of having its internal rules in an anarchy.