Google is still locked in a legal battle with Viacom (NYSE: VIA) over how it handled users who violated copyright rules on YouTube. So a copyright enemy of Viacom would be a friend of Google’s, right? No. Take IsoHunt, a BitTorrent search engine based in Canada. Legally speaking, IsoHunt may be on its last legs, at least in the U.S. The site was sued by movie studios in 2006, and in 2009 a federal judge found the site liable for breaking copyright law; the case is now on appeal. In an unusual twist, a much better-known search engine has now weighed in on the case-Google (NSDQ: GOOG).
In a third-party brief filed earlier this month, Google lawyers state unequivocally that IsoHunt broke the law. (The full brief is embedded below.) Why does IsoHunt, a search engine little-known outside of its niche, matter to Google? Because if IsoHunt ultimately loses, and the decision to shut down IsoHunt is written in a broad, sweeping way, it could hurt Google in Viacom’s lawsuit against YouTube, which is being reviewed by a separate appeals court. Conversely, a “clean” loss for IsoHunt-one in which judges painted it as an outlaw search engine with practices very different than Google’s-wouldn’t hurt Google at all.
Like Google, IsoHunt is a search engine, but it is specifically designed to help searchers find the “torrent” files that are transmitted using the BitTorrent peer-to-peer file-sharing protocol. While perfectly legal content is transmitted via BitTorrent every day, the protocol is also used to share large amounts of pirated content online.
Google’s lawyers have good reason to suspect that results in the IsoHunt case could be used against them. They open their brief by noting that one of the plaintiffs suing IsoHunt is Paramount Pictures, which is part of Viacom, the company waging a big copyright battle against YouTube; and several of the same lawyers suing IsoHunt are also working on the case against YouTube. Even though YouTube is a very different service than IsoHunt, Viacom lawyers are arguing that it “induced” copyright infringement among its users, a similar tack to that being taken against IsoHunt and peer-to-peer services that have been shut down in the past.
In the IsoHunt case, Google is performing a sort of high-stakes legal surgery. It’s trying to help the appeals court differentiate between the things IsoHunt did that really may have encouraged copyright infringement, and the things IsoHunt did that are simply part of the technicalities of running any search engine.
Google’s main points in the brief:
Google says that IsoHunt is clearly guilty of copyright infringement. Some operators of more “controversial” types of search engines-like Torrent-Finder.com, which recently had its domain name grabbed by U.S. federal agents-have argued that they perform basic, bare-bones search functions that are simply looking for a certain kind of file, and have argued that they’re really not doing anything so different than what Google is doing. Those operators should now be on notice that when push comes to shove, Google will gladly have its lawyers point out to judges just how stark the differences are.
In its brief, Google writes that IsoHunt operator Gary Fung “took affirmative steps to foster infringement.” A few examples: Fung created a “Box Office Movies” feature encouraging users to upload the most popular movies that were still in-theater. He also helped a specific user make his list of infringing files more easily found by others, and made specific requests for users to upload Matrix Reloaded and Alien. Looking at the several examples together, Google agrees with the movie studios that Fung sent the message to his users to break copyright law and swap movies. (The IsoHunt case includes large amounts of sealed documents but Google’s examples are all from the unsealed, public portion of the record.)
At the same time, Google argues that the judge’s decision condemning IsoHunt is troubling and needs to be pulled back in certain areas. In part, U.S. District Judge Stephen Wilson’s order simply includes irrelevant information that Google fears could be used against it by copyright holders. For example, Wilson noted in his ruling that IsoHunt “presented information about files in browseable categories, provided additional information about those files, placed them into categories based on commonly searched terms, and used an indexing program that automatically matched file names with specific terms.” The problem is that’s what all search engines do, note Google lawyers. If descriptions of basic internet search functions remain part of this order condemning IsoHunt, it “would deter a wide range of routine and socially valuable conduct that legitimate online service providers perform,” write Google’s lawyers.
In addition, Google doesn’t like how Wilson discussed the relationship between the “inducement” doctrine, which has been used to shutter file-sharing services like Grokster and Limewire, and the “safe harbor” under U.S. copyright law, which protects internet services from copyright lawsuits if they comply with takedown notices and take other steps. Instead of getting into all that, Google urges the appeals court to simply find that IsoHunt didn’t qualify for the “safe harbor” because it didn’t follow the required steps. Specifically, Fung refused to respond to many takedown notices and even blocked emails coming from BayTSP, the copyright enforcement company hired by the movie studios. IsoHunt also didn’t properly identify its DMCA agent, nor did it terminate the accounts of repeat copyright infringers, notes Google.
From reading this brief, it’s clear that Google foresees IsoHunt’s impending collapse. It wants the movie studios to take down the service in a “clean” way that doesn’t harm its battle to save YouTube from Viacom’s copyright attack.