IsoHunt Wants Jury to Rule on Free Speech Issues in MPAA Case

Last month BitTorrent site isoHunt lost its appeal against the MPAA, meaning that the site has to continue filtering movie and TV related terms from its search engine. However, isoHunt founder Gary Fung is not giving up just yet and has asked for a jury to decide on the case. In a petition filed this week isoHunt argues that, among other things, the Ninth Circuit decision chills innovation and threatens free speech online.

For more than seven years isoHunt and the MPAA have been battling in court, and it’s not over yet.

In 2010 the District Court ordered the owner of isoHunt to start censoring the site’s search engine based on a list of thousands of keywords provided by the MPAA, or cease its operations entirely in the US.

IsoHunt hoped to overturn this ruling in an appeal, but last month the Ninth Circuit upheld the decision of the lower court, ruling that the website does not qualify for safe harbor protection under the DMCA.

For now this means that the keyword filter stays in place, but for isoHunt founder Gary Fung this is not the end of the matter. This week isoHunt’s legal team petitioned the court for a re-hearing before a jury.

Among other things, isoHunt argues that the current verdict chills innovation and threatens free speech on the Internet.

“Fung contends that many of the items of evidence cited by the District Court should be protected as Free Speech under the First Amendment to the Constitution and would be inadmissible at trial. As a result of decisions herein, impermissible burdens are being imposed on Fung’s speech and on the speech of other Internet users,” the petition reads.

The MPAA used quotes from isoHunt’s founder dating back to 2003, to argue that he was aware of and liable for copyright infringing use of the site. As evidence the MPAA cited the following statements made by Fung in a forum thread discussing the RIAA.

“Agreed. they accuse us for thieves, and they r right. Only we r ‘stealing’ from the leechers (them!) and not the originators (artists),” Fung wrote.

IsoHunt’s founder later updated the IRC announce bot to say: “Files… are now being indexed for isoHunt.com…We completely OPPOSE RIAA & Co., so do not be alarmed by our indexing activities.”

In its petition for a re-hearing isoHunt argues that when these isolated statements are used to determine liability, without any connection to direct infringements, this could “severely chill free speech” and threaten innovation.

“The effect of decisions herein is to make sarcasm directed at copyright enforcement or statements in support of file-sharing a reason for later imposition of liability. Cautious individuals will practice self-censorship. Outspoken individuals will avoid certain areas of technological development,” isoHunt’s legal team writes.

The free speech concerns are not the only issue raised by isoHunt. The petition also contends that there is no evidence that isohunt’s founder promoted or facilitated direct copyright infringements.

In addition, the petition protests the ruling that Fung should not be entitled to safe harbor protection under the DMCA because he knew that isoHunt users were sharing copyrighted material. According to isoHunt’s legal team this goes directly against verdicts in other cases, such as the dispute between YouTube and Viacom.

With a re-hearing before a jury isoHunt is confident it can win the case as that will provide an opportunity to counter specific allegations of copyright infringement. If this request is granted the case is expected to continue for a few more years, perhaps making it to its 10th anniversary in 2016.