Seriously, we're exactly like Google! isoHunt makes its case

By Nate Anderson

Last week, the Congressional International Anti-Piracy Caucus held a press conference with RIAA CEO Mitch Bainwol. They rolled out a new list of six horrific websites that make copyright infringement simple—and that just might destroy your job and family.

"An Internet of chaos may meet a utopian vision but surely undermines the societal values of safe and secure families and job and revenue-creating commerce," said Bainwol. "Shining the spotlight on these websites sends a vital message to users, advertisers, payment processors and governments around the world."

Canadian-based isoHunt found itself on the list and it wasn't pleased about the inclusion.

"One person's 'worst search engine' is another person's 'robust search engine'," said isoHunt's attorney, Ira Rothken, when I spoke with him this week. "If the RIAA has a problem with the manifestation of torrent files throughout the world on the Internet," he added, the group should take it out on those who host the torrent files.

isoHunt is just a search engine, he argues, citing a 90 percent overlap between the torrent files indexed by isoHunt and torrent files available through a Google search.

This "mere search engine" argument didn't save The Pirate Bay under Swedish law (though an appeal is pending), and it didn't save isoHunt under American law. isoHunt has been targeted in a long-running copyright infringement lawsuit in a California federal court, and a judge issued a summary judgment against the site last year. isoHunt was liable for "inducing infringement."

Ira Rothken

Last week, another blow fell as the judge issued a tough permanent injunction against isoHunt, demanding that it implement tough keyword-filtering rules based on movie titles submitted by rightsholders. It also must block such piratical search terms as "warez," telecine," and "jaybob."

Still, Rothken remains adamant that the site "doesn't do anything more than what a good, automated search engine ought to do." In our conversation, he made the case that search was simply too important to suffer these sorts of blanket injunctions.

"Should we as a society not allow torrent search engines because some groups like the major studios don't like the state of the Internet as it relates to .torrent files?" he asks.

The answer to that question will soon provide another piece of key judicial precedent for these types of cases.

Just another search engine?

Rothken's basic contention remains that isoHunt is a search engine, nothing more. Even if the site ran a tracker (its US-facing tracker was turned off in 2007), he says, it adds nothing to the basic argument about infringing behavior. "Trackers do not have any content going through them," says Rothken, comparing them favorably to sites like YouTube, which actually host infringing content themselves.

And other search engines link to loads of infringing content, even beyond .torrent files. Do a simple image search for any celebrity on Google, for instance, and many of the responses and thumbnails (which Google even caches on its own servers) are unauthorized and copyrighted.

"We all recognize that the greater good is to allow for robust search," says Rothken.

But isoHunt isn't like mainstream search engines in one key respect: it indexes only torrent files, a format used largely to distribute copyrighted material without authorization. Instead of scooping up torrents as part of its quest to index everything, isoHunt makes torrents its business.

Rothken concedes that the distinction "may have a bearing on the optics of the case," but argues that it "shouldn't have a bearing on the substance of the case."

I press on this point: how can the quantity of infringement not matter at all? If some new technology was used to break the law 999,999 times, but the millionth use was a legal one, wouldn't the sheer scale matter to a court?

"It may matter to a court right now," Rothken allows, but he says that it shouldn't. Search is just too important to society. "Regardless of the percentage of files, even if it's a large percentage of those files that ultimately will lead to downstream content that's unauthorized, search of that content should still be allowed... When you look at the total picture... do we believe that search engines for .torrent files should be banned altogether? Most people would say no."

Rightsholders aren't left without remedy here, it's just that they don't like the remedy: sending tens of thousands of DMCA takedown notices.

Unlike sites such as The Pirate Bay, which routinely mock takedown requests, isoHunt responds "every single time" to takedown requests, and those files are blocked by logging their hash values—identical copies will be kept out of the indexing system in future.

The federal trial court did recognize this, but it found that isoHunt's "inducement" of copyright infringement to be the overriding factor. Something similar happened to the Dutch P2P search engine Mininova last year; despite taking down links after a complaint, a Dutch judge said the site needed to exert some level of preemptive filtering due to the massive infringement it was facilitating.

"So vague and so ambiguous and so overbroad"

IsoHunt now faces the same restrictions in the US. It must filter its index using lists of titles supplied by US movie studios, but Rothken objects to the expansiveness of the order. It's not "narrow," he says, but "so vague and so ambiguous and so overbroad." In his view, the injunction will essentially force isoHunt to filter individual English words and numbers... like "Firefox," "Avatar," "10" and "24."

This is something of a blunt instrument—a German court recently recognized how that such filtering would lead to numerous false positives on a site like RapidShare. Filename filters alone, especially when they filter single words, could catch all sorts of things: parodies, a short clip compilation of The Godfather with voiceover criticism, the Firefox browser.

None of this made much headway with the trial judge, who did not even let the case proceed to trial (it was decided on summary judgment). But Rothken says the case is important to isoHunt, to founder Gary Fung, and to society, so he will pursue the case in "every court that will hear us."

isoHunt is currently asking for a stay of the injunction and plans to appeal the case.