File-sharing sites haven't had a great year, especially in court, but on Wednesday they received a smidgen of good news.
Ira Rothken, Isohunt's attorney
(Credit: Greg Sandoval/CNET News)The Motion Picture Association of America asked a federal court to rule that Isohunt was liable for copyright violations committed by its users, but the judge in the case was unconvinced. In his order, U.S. District Court Judge Stephen Wilson said the studios had yet to prove that the Isohunt's users had broken U.S. law.
Lawyers for the MPAA, the trade group representing the six major Hollywood film studios, are trying to convince the judge that Isohunt encouraged and contributed to the infringing activity of users. Wilson gave the MPAA until Sept. 15 to file a brief that convinces him direct infringement at the site was committed by those in the U.S. Apparently, Wilson has questions about whether U.S. residents have pirated content using Isohunt.
"United States copyright laws do not reach acts of infringement that take place entirely abroad," Wilson, wrote in his order.
A spokeswoman for the MPAA did not immediately have a response.
The significance of the judge's order, at least from the point of view of Ira Rothken, Isohunt's attorney, is that MPAA's investigators have struggled to draw specific examples of infringement occurring in the U.S.
"Our view is that it would be difficult if not impossible," Rothken said, "to be able to trace any direct infringement to the users of the Isohunt's site in a manner that would hold Isohunt responsible for the infringing conduct. I think the judge's order will hopefully demonstrate to the court that Isohunt, besides lacking knowledge of direct infringement, can't possibly be held liable for users conduct, especially since any such conduct occurs after they leave the site."
Rothken is hoping to argue Isohunt's case before a jury, something that no other BitTorrent sites have managed to do.
"I believe there has not been a single case in U.S. law where there has been a decision on the merits of a Torrent search engine," Rothken said. "We're cautiously optimistic Judge Wilson will deny plaintiff's motion for summary judgment and ultimately there will be a trial on the merits."
Some of the cases that have gone against BitTorrent or file-sharing sites Sweden-based BitTorrent search engines, The Pirate Bay, was brought up on criminal misconduct charges and TorrentSpy's case was decided on a discovery sanction. Some of the issues in the Usenet.com case closely resemble Isohunt and TorrentSpy's, although the company is not a BitTorrent tracker or search engine.
Usenet.com is a company that enabled users to access the Usenet network and it too lost on a discovery sanction.
Most of these companies claim to do nothing more than help people locate files. One question often asked by readers is how is this different than what Google offers? One can find plenty of infringing content using the behemoth search engine.
"I believe the difference is that for one reason or another courts seem to place greater social importance on the Google search engine," Rothken said. "Courts also tend to frown on search engines created to find specific file types like .torrent files. And other than that there is no difference (Isohunt and Google)."
Charting number of times Wolverine was illegally downloaded on file-sharing sites.
(Credit: BigChampagne)Outfitted with a skeleton forged from a super alloy, the comic book hero Wolverine is supposed to be indestructible.
After a raw version of the movie "X-Men Origins: Wolverine" leaked to the Web last month, 20th Century Fox is hoping the action pic, which debuts Friday, is nearly as durable.
Hollywood has been in a near frenzy since April 1, when someone--who has yet to be identified--leaked a copy of "Wolverine" to the Web. The fear was that the unauthorized copy would hurt ticket sales. "Wolverine" cost more than $100 million to make.
Some people won't bother to spend money at the theater when they can watch it for free online, goes one argument. Since it hit the Internet, the pirated copy has been downloaded more than 4.1 million times, according to BigChampagne, which does market research that focuses on file-sharing networks.
Another of Hollywood's concerns is that people who download work prints of movies, as was the case with "Wolverine," are seeing incomplete versions. The studios say they're worried some people will be turned off by the unfinished works and that they'll spread word that the movie is a stinker. So far, none of that appears to have happened.
Fandango, the online movie-ticketing services, is reporting hundreds of sold out shows across the country (not all of them sold through Fandango). The Los Angeles Times wrote Friday the film appears headed "toward a solid but not spectacular opening around $85 million."
(Credit:
20th Century Fox)
It's still too early to tell how "Wolverine" will fare in the long run, but the film's early success could be seen as evidence of a claim many in the torrent community make: that a film appearance on the Web can actually help create anticipation around a movie. Certainly, no one so far has attempted to blame an Internet leak for a film that bombed.
"Torrents won't have one iota of impact on the financial results of the film," said Justin Bunnell, founder of TorrentSpy, a formerly popular BitTorrent search engine that shut down after being sued by the film industry. "The torrenting only increased awareness of the film."
Who can argue that the controversy surrounding the leak didn't generate scores of headlines about Wolverine?
"The news cycle was strong (as a result of the leak)," said Eric Garland, BigChampagne's CEO. "This is a big tent-pole movie that would have received a lot of publicity anyway, but it saw a lot of extra headlines and the word-of-mouth wasn't bad. I don't think this movie was badly hurt by this leak."
Bunnell argues that previous films or TV shows that were shared illegally online, such as the "The Hulk" or "Sicko" succeeded or failed in theaters based on their quality.
"The Hulk" (the version starring Eric Bana) leaked to the Web in 2003, shortly before the theatrical release. After a respectable opening weekend, sales went into a nosedive and the movie is considered a financial disappointment. But the film also suffered from critical reviews, so its dismal performance can't be blamed on the leak. (Critics are mixed about "Wolverine.") "Sicko," director Michael Moore's documentary on the health care industry, appeared on the Web a week before being screened in theaters and fared well, relative to other documentaries, at the box office.
"It can be catastrophic to any media company if advanced word is poor," Garland said. "Ultimately, a bad product will always lose out. What's changed is that you always used to get a chance to get that first wave of paying customers through the door. You lose that group if word gets out that the movie isn't any good."
What it comes down to is that most people prefer watching a film on a huge theater screen than watching on a PC or TV, says Bunnell.
"Watching in a theater is a very empowering experience," Bunnell said. "You're watching with your friends, eating popcorn, seeing all the action up close. Even full screen on a computer can't produce that... I think the theater is a great experience and much more fun than watching alone on a computer screen."
LOS ANGELES--Many of the major film studios have gone through a painful round of layoffs and now the industry's trade group is cutting staff, too.
The Motion Picture Association of America, much maligned by file sharers everywhere, has gone through a "significant" round of layoffs, according to a studio source. The source said the layoffs were well over 10 percent and more reductions are expected.
A spokeswoman for the MPAA confirmed the layoffs to CNET News, but declined to provide numbers or percentages. The group battles copyright infringement on behalf of the six largest film studios. How the cutbacks will affect the group's antipiracy efforts is unclear.
The ailing economy is hurting Hollywood and staff cutbacks have occurred at Paramount, Warner Bros., and Disney, as well as others.
The MPAA's leadership is mostly unaffected, said the MPAA spokeswoman. Prior to the layoffs, Dean Garfield, one of the more high profile MPAA attorneys, left the trade group in December to become CEO of the Information Technology Industry Council, a technology-focused trade group.
Some of the members of that tech trade group include HP, Adobe, Dell, IBM, and Cisco.
In 2006, Garfield was accused in a lawsuit filed by TorrentSpy, the now defunct BitTorrent search engine, of hiring a hacker to illegally break into the company's servers to extract confidential information. The MPAA denied the allegations and the lawsuit was later dismissed.
Elsewhere at the MPAA, the group is expected to meet RealNetworks in court again on the RealDVD case on April 1. The MPAA alleges in a lawsuit that the RealDVD software, a technology that enables users to copy films and store them on their hard drives, violates copyright law.
Nearly a year since being ordered to pay the big film studios more than $100 million, TorrentSpy is launching a legal comeback.
On Tuesday evening, TorrentSpy filed an appeal to overturn a judgment issued by U.S. District Judge Florence-Marie Cooper. Last May, Cooper ordered TorrentSpy, which shut its doors as a result of the legal fight with the Motion Picture Association of America, to pay nearly $111 million in damages to the MPAA for infringing the copyright of thousands of films and TV shows.
TorrentSpy was a favorite tool for those seeking bootleg films, but site operators always insisted that its search engine was used for legitimate purposes as well. The appeal was filed in the 9th Circuit Court of Appeals, according to TorrentSpy's attorney, Ira Rothken.
"We're arguing the court was wrong in procedures and wrong in judgment," Rothken told CNET News on Wednesday. "In a one-hour hearing regarding discovery issues, the court terminated the case and didn't give TorrentSpy a trial. We believe the court was wrong and abused its discretion. We believe the court ordered TorrentSpy to do things that (were) in violation of the site's privacy policy, and we believe that the tension between the court's discovery orders and user privacy rights is an important issue on appeal."
A year ago, the judge found that TorrentSpy operators intentionally destroyed evidence in the case, making it impossible for the MPAA to get a fair trial. They had earlier been fined $30,000 for violations of discovery orders and were warned of severe sanctions, if they continued to ignore the orders.
The MPAA had always argued that TorrentSpy's reason for existing was to aid those interested in pirating films.
"TorrentSpy blatantly contributed to, profited from, and induced massive copyright infringement," an MPAA representative said. "Anyone engaging in the same conduct as TorrentSpy would be liable for copyright infringement. The court clearly recognized that TorrentSpy defendants engaged in evidence destruction because they knew that such evidence would prove damaging to them. The sole purpose of TorrentSpy and sites like it is to facilitate and promote the unlawful dissemination of copyrighted content."
The site attempted a series of legal maneuvers to protect the anonymity of visitors. In August 2007, the company cut off access to residents of the United States, presumably to avoid complying with a court order that it turn over users' personal information.
More to come.
TorrentSpy may be gone but its attorneys continue to allege in court that the motion picture industry engaged in a spying campaign against the company as well as others, including the Pirate Bay.
TorrentSpy, a BitTorrent search engine that was driven out of business last March as a result of fighting a copyright suit filed by the Motion Picture Association of America (MPAA), is seeking another chance to argue that the MPAA wronged the company when it purchased information obtained from a hacker who had pilfered company e-mail.
A federal judge threw out TorrentSpy's hacker complaint last August, saying it was unclear whether federal wiretapping laws covered the interception of e-mails. On Thursday, TorrentSpy's attorneys filed an appeal with the 9th Circuit Court of Appeals, asking that it reverse the trial court's dismissal of the case.
Included in that heavily redacted legal filing was more detail about the kind of information the MPAA sought from Robert Anderson, who has acknowledged hacking into TorrentSpy's e-mail system. According to TorrentSpy's legal filing, when Anderson initially offered to sell information to the MPAA he promised much.
Anderson wrote to the MPAA: "We can provide the names, address, and phone (numbers) of the owners of Torrentspy.com and Thepiratebay.org--along with evidence, including correspondence between the two companies."
Dean Garfield, an MPAA executive, gave the following testimony, according to the court records: "We were going to get information about the location and identity of the people who were running Torrentspy, as well as information related to a general conspiracy and relationship between Torrentspy and a number of other prominent services including ThePirateBay."
Representatives from the MPAA have always said that Anderson had already obtained the information before offering it to them and told them he had obtained the TorrentSpy e-mails legally. The MPAA did not respond to interview requests.
TorrentSpy's attorney, Ira Rothken, said last August: "We believe that the MPAA, when it paid $15,000 for about 30 pages of e-mails, knew or should have known they were involved in purchasing something in a wrongful manner."
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