BitTorrent index Isohunt can be held liable for any copyright infringement committed by its members, according to a new ruling from a federal appeals court. The decision (PDF) states that the service is not protected under the safe harbor provisions of the Digital Millenium Copyright Act. The judges hearing the case said that Isohunt founder Gary Fung possessed “red flag” knowledge that illegal activities were taking place on his site. To qualify for protection under the DMCA, Fung would have had to not have any knowledge that copyright infringement was occurring, and have removed any offending materials once notified of the problem by the rights owner.
The decision upholds the previous ruling set forth in the case of Columbia Pictures v. Fung. In that seven-year-old case, the Hollywood studio claimed that Fung and his service were encouraging people to exchange pirated copies of Columbia’s movies. The court ruled in favor of the studio then, as well.
The Motion Picture Association of America issued a statement responding to the latest decision. “Those who build businesses around encouraging, enabling, and helping others to commit copyright infringement are themselves infringers, and will be held accountable for their illegal actions,” the organization said.
The key distinction in this case appears to be encouragement, according to The Verge’s assessment. Other court cases related to the DMCA, such as Viacom v. YouTube and Universal Music Group v. Veoh, have found that proving a website operator had red flag knowledge was not possible. In Columbia Pictures v. Fung, the court determined that since Isohunt induced users to share files, that encouragement was enough to remove the chance for safe harbor protections.
This is not the first time, nor will it be the last, that the details of the DMCA have come into question. From limits on unlocking smartphones to YouTube video takedowns, it seems likely that interpretations of the 1998 laws will continue to cause debate in the tech world. Other Internet services will need to take this latest decision in stride.
Image via Sam Howzit
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