Elliott C. Back: Internet & Technology

ISOHunt MPAA Letter

Posted in Law, P2P by Elliott Back on January 22nd, 2005.

Check out the following letter between ISOhunt and the MPAA (via BoingBoing):

Mr. Oppenheimm,

On Wed, 19 Jan 2005 10:12:13 -0500, Oppenheim, Matthew J wrote:

Dear Mr. Fung:

We are writing to follow up on our prior correspondence. As you know by now, we have filed suits against a number of significant BitTorrent operators. We continue this correspondence in the hope that we might resolve matters with you such that litigation is unnecessary.

This is such an obvious intimidation tactic that I’m glad ISOhunt doesn’t fall for it. “We’ve sued others… now we’ll sue you…” is not a friendly overture, and smacks of desperation.

Yes we are aware of your lawsuits. Despite the fact that I don’t live in the US and the laws MPAA follows does not apply here, it is our intention to cooperate in resolving issues you have, in a reasonable fashion.

As we have said repeatedly, a significant amount of copyright infringement is occurring as a result of your website and tracker. Apart from the knowledge you have by virtue of your day to day operation of the site and server, we have put you on notice that the infringement is occurring. The list of representative works that was attached to our notice letter was merely a sample of the infringement occurring on your site. We have requested that you stop the infringing conduct immediately. That you have automated the process of adding torrents to your website is not a defense. You have the ability to review torrents before posting them. You also have the ability to search your website and review the torrents that are already being distributed. There should be little doubt, for example, that “Ocean’s Twelve” which is a torrent offered on your site is copyrighted and should not be distributed. A copyright holder is not obliged to monitor all the websites and the servers around the world to police and protect each and every work from those who would choose to close their eyes to ongoing infringement. It is incumbent on you to distribute only those torrents that correspond to files that you know are authorized to be distributed.

You repeatedly mention the “representative” list of works, which serves only to intimidate us as a search service. If you look at the Betamax vs. Universal case, the VCR was not deemed illegal since it is capable of legal use. isohunt.com is a content agnostic search service on indexing torrent links over the net, which is very much capable of legal use. While as a service we can filter content, and that is exactly how we cooperate by filtering identified copyrighted titles, we do not have the man power to manually verify the tens of thousands of torrent links, nor is it even technically possible without a complete list of copyrighted works to filter against. Since you seem to have trouble producing a complete list, a technical difficulty I can understand, you should also understand the same difficulty we have in making your copyrighted works magically disappear… somehow. So instead of calling it a complete list, which seems unfeasible, it should be referred to as a sufficient list. Without it, we cannot help you in filtering your works in our search results.

Although you have suggested that you would like us to provide an index of copyrighted works to which you can refer regarding the torrents on your website, we simply do not find it credible that you are unable to identify as copyrighted material the many popular motion picture titles currently referenced on your website. To the extent you need further guidance, the United States Copyright Office maintains records of every motion picture and television program in the United States that has a copyright registration. Additionally, on-line databases provide information regarding who distributes motion pictures and television programs. You are already aware of at least one such source, the website imdb.com, to which you provide your users deep-links for motion pictures.

Read above. According to normal procedures of DMCA takedown, it is your responsibility to identify what maybe infringing your copyright, and then we will comply. Your notion that we should know every title MPAA owns, while you have difficulty producing such yourself, is absurd. Links to websites such as imdb.com is user submitted, while torrent links may be user submitted or indexed from other sources on the internet. We do not moderate this process, we don’t have the resource to do so and it is not our policy.

This reply is genius. I love the argument. Because the MPAA cannot produce a list of copyright works that it “owns,” ISOhunt cannot filter their search results. Because ISOhunt is automated, it can’t manually filter, by policy choice. This is quite clever, until the MPAA does produce a masterlist…

Finally, it continues to appear to be true that you have addressed the infringement of which we have put you on notice. Indeed, you have not removed those torrents that we specifically gave you notice. Your response that you should not have to undertake any action to address the ongoing infringement until we have agreed to the “arrangement” you have offered is not acceptable. You have an obligation to address the ongoing infringement. You may not offer less protection than we have a right to expect, and then condition that lesser protection on our agreeing that you should have to do nothing more.

The MPAA lawyers want immediate action and a precedent for future actions. ISOhunt wants a policy for removing copyright works, which it will then apply uniformly. Doesn’t the latter seem more sane?

It is not an arrangement, it is information necessary for us to cooperate. Unless filtering against your “representative” list is sufficient, which we then can use to filter to your satisfaction, please provide us with a list that is sufficient.

Cheers,
Gary
isoHunt.com

What will happen next? Who knows, but the ongoing squabble with the MPAA lawyers is beginning to become heated.

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