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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.
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.
Wait. You see exactly this. At the bottom it will say "not showing 5 results Click here to show the DMCA takedown notices at chillingeffects.org"
Also, the takedown notices include the URL to be taken down, so it's still available.
Maybe we need to create a new one. Perhaps one with beer and hookers?
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.
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.
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?
caritj.org
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.
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. "Lobbying" is a 3 billion dollars a year and growing 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.
Just because you're paranoid doesn't mean there isn't an invisible demon about to eat your face
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
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 [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?
"I zero-index my hamsters" - Willtor (147206)