Judge All JudgeAll.com

• David Kravets
• December 28, 2009  |
• 2:54 pm  |
• Categories: BitTorrent, Digital Millennium Copyright Act

The operator of a popular BitTorrent search site said Monday he will likely challenge last week’s landmark decision by a U.S. judge declaring such sites unlawful and no different from conventional peer-to-peer piracy services.

“We do think from our preliminary review there are a number of issues for appeal,” said Ira Rothken, attorney for popular torrent search engine ISO Hunt, the defendant in the case.

The long-awaited decision, while not unexpected, was the first in the United States in which a federal judge found that BitTorrent search engines are an unlawful avenue (.pdf) to free movies, music, videogames and software. A contrary ruling likely would have sparked a gold rush of BitTorrent prospectors in the United States.

Targeted in the case was Gary Fung, a Canadian who operates ISO Hunt and other torrent search engines. Among other things, he argued that U.S. laws did not attach to him, and if they did, that his websites were protected under the Digital Millennium Copyright Act.

In a lawsuit brought by the Motion Picture Association of America, U.S. District Judge Stephen Wilson in Los Angeles ruled: “Defendants’ technology is nothing more than old wine in a new bottle.”

Fung’s “intent to induce infringement is overwhelming and beyond reasonable dispute.”

In terms of infringement, the judge said ISO Hunt was no different than Napster and Grokster. But he said the BitTorrent technology was far superior and “obviously increases the potential for copyright infringement.”

The judge wrote that, instead of having to log into a proprietary network to download copyright files from each others’ computers, “users access defendants’ generally accessible website in order to download those files. And instead of downloading content files directly through defendants’ website, defendants’ users download dot-torrent files that automatically trigger the downloading of content files. These technological details are, at their core, indistinguishable from the previous technologies.”

The MPAA has sued dozens of similar sites in the United States, resulting in settlements or default judgments. the industry group won an $111 million default judgment against TorrentSpy last year after a federal judge concluded the now-shuttered tracker hid evidence.

That case is on appeal, but Judge Wilson’s ruling marks the first time that the legal merits of torrenting have been squarely addressed in the United States.

“The court’s decision establishes a powerful precedent that makes clear, once again, that website operators must respect the rights of content owners and control infringement on their websites, or face liability for their actions,” MPAA vice president Daniel Mandil said in a statement.

Fung, in an e-mail, said his sites should be protected by safe-harbor provisions of the copyright law, which immunize search engines from infringement liability if they promptly remove works when a rights-holder notifies them to take down infringing content.

“We are considering all options,” Fung said.

Among other things, the judge said Fung has not “acted expeditiously to remove, or disable access to, the infringing material.”

The judge said Fung’s sites — including ISO Hunt, Torrentbox and Podtropolis — garner about 10 million hits monthly. Wilson noted that metadata for the sites included “warez” to alert search engines of the site’s nature ,and that Fung was “fostering a community that encouraged — indeed, celebrated — copyright infringement.”

But both Fung and Rothken said the judge got it wrong, that the site has removed thousands of infringing files upon proper request. “This alone, among other reasons, contradicts allegations that we willfully induce infringements,” Fung said.

The decision came eight months after a Stockholm court ruled similarly in the movie studios and Swedish government’s case against The Pirate Bay, the world’s largest BitTorrent site. That case, a blend of a civil and a criminal trial, is on appeal.

That April decision calls for the jailing of the Swedish site’s four co-founders. Despite a Stockholm court’s orders, the site remains functional.

Fung does not face any prison time. The judge did not order Fung to shutter his sites or pay monetary damages. A hearing on those matters is scheduled Jan. 11 in Los Angeles.

It is unconstitutional to presume that hearings where civil fines are imposed on people who violate rules in the city’s bus or subway system are closed to the public, a judge has ruled.

U.S. District Judge Richard Sullivan said the hearings operate with many of the same legal rules as a court proceeding and are entitled to the same First Amendment protection. Although his written decision was signed Wednesday, it was released publicly on Monday.

The decision came in a lawsuit brought by the New York Civil Liberties Union against the New York City Transit Authority, which operates the city’s 27 subway lines and 243 bus routes, providing more than 2.3 billion rides in 2008. Also last year, the agency staged more than 20,000 hearings to process alleged violations of rules in the transit system.

Sullivan rejected arguments by lawyers for the transit authority who said the agency wanted to protect the privacy of people who challenge alleged rule violations and ensure they would not fail to attend a hearing out of fear that their case might be made public.

The Transit Authority said its policy was that members of the press or the wider public could only attend a hearing if the person who was challenging a rule violation gave permission.

Sullivan said defendants at civil and criminal court proceedings would likely prefer the same ability to control whether their hearings were public.

“Such a desire, however, does not suffice to defeat the First Amendment right of access,” the judge wrote.

Sullivan noted that many of the same legal rules were followed at the hearings as occur in court proceedings. For instance, those challenging a citation have the right to an attorney, the right to cross-examine the police officer and the right to produce documents and witnesses.

Police officers issue the citations and it is up to their discretion whether to require that they be processed in criminal court, where penalties can include a jail sentence, or before the Transit Authority Bureau, where no jail time is possible.

The city’s transit authority did not immediately respond to a request for comment.

NYCLU Executive Director Donna Lieberman said the ruling confirms that there is “no room for a secret court in New York City.”

The NYCLU said the police department in recent years has issued up to 171,000 citations annually for violations such as fare evasion, public intoxication, unreasonable noise and obstructing pedestrian traffic.

The citations from 2005 to 2008 have resulted in more than 22,000 hearings annually at offices in Brooklyn, with guilty judgments issued in more than 83 percent of the contested cases, the civil liberties group said.

The civil rights group’s associate legal director, Christopher Dunn, said the NYCLU plans to monitor the hearings in the future to ensure they are conducted fairly and to track police enforcement activity in the transit system.

In its lawsuit, the agency said the number of subway riders stopped and questioned by police officers grew dramatically from 2,474 in 2003 to 38,552 in 2007, with studies showing that 88 percent of those subjected to police stops in the subway system were black or Latino.