ISOHunt Receives Permanent Injunction in US Court

It’s been an ongoing case against ISOHunt in the US and new court documents were released that shows that ISOHunt has been dealt with a permenant injunction in the US. One report suggests that Gary Fung, the founder of ISOHunt, could face possible prison time if he doesn’t comply.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

As far as the US courts are concerned, ISOHunt isn’t faring too well legally.

“The Court found that “evidence of Defendants’ intent to induce infringement is overwhelming and beyond reasonable dispute,” […] and therefore that “Defendants’ inducement liability is overwhelmingly clear,”” the ruling said.

The ruling further says, “On the issue of a permanent injunction, the Court has considered the briefs filed by the parties, the arguments presented at the March 22, 2010 hearing on this matter, and the proposed language and arguments presented by the parties in response to the Court’s proposed order. Based on the foregoing and all matters of record in this action, pursuant to Federal Rule of Civil Procedure 65 and 17 U.S.C. § 502, the Court enters a Permanent Injunction in favour of Plaintiffs and against Defendants in accordance with the terms contained herein.”

One notable thing in the ruling was this:

In addition, given the multiplicity of infringements of Plaintiffs’ works caused by a single user downloading a single dot-torrent file from Defendants’ sites, see Order at 6-7, it would be untenable for Plaintiffs to track and proceed against each infringing end-user.

This pretty much goes along common knowledge that rights holders will never be able to go after every file-sharer out there and confirms the old “safety in the herd” theory where if enough people do something, not everyone will face any consequences. For those who believed this for some time, this theory can be confirmed in this court ruling.

The interesting thing is that it’s a US ruling saying that a Canadian site operated by a Canadian is liable and somehow subject to US law. To satisfy a previous ruling, ISOHunt issued a “Lite” version of the site.

The ruling did comment on this too saying, “Defendants’ proposed “primal” or “lite” website contains all of the same indexing and searching functions as the original websites, only with a different interface for the users to operate. […] In fact, Defendants have not even ceased all of the active conduct of encouraging and promoting infringement which the Court specifically identified in its Summary Judgment Order. A number of features mentioned in this Court’s Summary Judgment Order remain active: a “top 20” TV shows and movies feature; a “top searches” feature (which invariably includes all, or almost all, copyrighted works); and access to Plaintiffs’ works that are specifically identified as the subject of this action.”

Meanwhile, the Financial Post had a more dire possibility for Fung saying, “As a result, Mr. Fung now could face possible jail time for not complying with the judge’s order.”

It’s a strange perspective since Fung was filtering out US residents and it’s a website operating out of Canada being operated by a Canadian. Could a US court order jail time on a Canadian?

While there is a sense of sovereignty going on here, one can also look at the case of the Prince of Pot (Marc Emery) where a Canadian was selling seeds in Canada (which ultimately made their way to the US). The US was infuriated and wanted him, Marc Emery, to face jail time but the laws in Canada are different in Canada. So the US successfully got Emery extradited to the US so he could face an extensive jail time. Critics worry that suddenly, now, US laws are going to apply to Canada and that the arm of the US can always come across Canada and take whoever they want. If what the Financial Post is saying is accurate, things could go similarly for Fung in theory though it’s doubtful jail time is going to happen at this point.

It’s not immediately clear how ISOHunt will respond as there are indications on the forums that the “Lite” version is still being worked on. It’s most likely that ISOHunt will simply disable the features mentioned in the permanent injunction (i.e. top keyword searches), but that remains to be seen.

Drew Wilson on Twitter: @icecube85 and Google+.

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