
Torrent Search Engines Unlawful, U.S. Judge Says - phsr
http://www.wired.com/threatlevel/2009/12/torrent-searchengines-unlawful/
======
tptacek
You know, I use Torrent search engines to time-shift TV (we pay for pretty
much every piece of premium cable except Cinemax), and so I get a lot of value
out of sites like Isohunt, but even so it's hard to escape the fact that these
sites are deliberately coming as close to the line of "overtly criminal" as
you can get.

Because, give me a f'ing break: the first link in the categorized breakdown of
indexed Torrents on Isohunt is to "Videos/Movies"; it is only the fact that
Isohunt is a _crappy_ torrent search site that results in that link _not_
being entirely composed of trivially regexable horrific copyright violations.

 _For what it's worth, I'm slightly queasy about calling "torrenting whole
seasons worth of shows I paid for" "time-shifting"; to whatever extent that
that's a reasonable definition of what I'm doing, it also ignores the fact
that many (most?) torrent peers haven't paid for the content in any form and
are free-riding with my assistance._

~~~
chancho
> I'm slightly queasy about calling "torrenting whole seasons worth of shows I
> paid for" "time-shifting";

That's because it's illegal. You haven't actually paid for the shows. You've
paid for access to the stream of content, but that doesn't automatically grant
you access to acquire that same content from a third party. It'd be the same
as if you saw it in the theater and then said to yourself "hey I've already
paid for this once so I'm just going to torrent the dvd rip."

I'm not judging. I do this too, even for shows I don't "pay for", but let's
face facts: we're minor criminals. I'm not entirely comfortable with it either
so I'm weaning myself off of it. Eventually, everything becomes available on
netflix, so really it just takes patience. (Sometimes my patience is worn thin
by netflix's fucked up queue-jumping practices, then I torrent. I'm weak.)

~~~
nostrademons
Do you have any legal basis for that? Sony vs. Universal Studios (1983) hinged
on timeshifting being legitimate fair use: "because the District Court's
factual findings reveal that even the unauthorized home time-shifting of
respondents' programs is legitimate fair use". If it's legal to timeshift
broadcast TV, why would it be illegal for subscription TV?

Similarly, if timeshifting subscription TV is not fair use, then Tivo and all
the other DVR makers would exist solely for infringing purposes, and I doubt
we'd see them on the market.

IANAL, but I'm guessing that UANAL either, so I'd like to see some evidence
that it actually is illegal before being stated as such...

~~~
evgen
"Time shifting" is legitimate fair use if _you record the shows yourself for
your own personal use._ If you claim that because the episode you are
downloading was at one point in the past shown on broadcast TV you are "time
shifting" it then you would not get very far on court.

~~~
jrockway
Before we get to court, why don't you decide what crime this is?

------
jrockway
_Fung was “fostering a community that encouraged — indeed, celebrated —
copyright infringement.”_

True. Too bad that's perfectly within his rights. "Free speech", have you
heard of it?

~~~
xsmasher
Speech can also constitute a crime. Hiring a hitman, joining a criminal
conspiracy, or inducing copyright infringement are crimes; the fact that you
may speak or express yourself while doing so doesn't make it a free speech
issue.

~~~
jrockway
"Celebrating [copyright infringement]" is definitely speech, however.

------
kiba
"The more prohibitions there are,

The poorer everyone will be.

The more weapons are used,

the greater the chaos will be in society.

The more that people seek "knowledge" for its own sake,

the stranger the world will become.

The more laws that are made,

the greater the number of criminals." - The Tao

The MIAA/RIAA wishes to impose more regulations regarding the distribution of
cultural goods. This mean less ease of access to cultural goods. Everyone will
be poorer, checked.

Lawsuit is used to coax individuals into paying rather than focusing their
energy on adapting their business model to the internet. Weapon usage,
checked.

This cause chaos in society by inciting an angry crowd of consumers who felt
the injustice resulting from agression. So chaos does follows, check.

Hmm, don't know about what knowledge seeking means, but I'll try. Everyone is
asking the question which length of years is correct for copyright to maximize
economic benefit. It can be said that they seek knowledge without questioning
the reason "why?". A check, maybe?

Copyright laws make everyone a criminal when they merely copy something. With
a push for more power to punish people, this mean more force of law. So the
law is making people into criminals, checked.

So in the end, what the court did is rules in favor of chaos over harmony.

~~~
RevRal
+1 For the cool poem.

------
iamaleksey
Now that we have DHT + PEX + magnet links
([http://lifehacker.com/5411311/bittorrents-future-dht-pex-
and...](http://lifehacker.com/5411311/bittorrents-future-dht-pex-and-magnet-
links-explained)), someone should come up with distributed torrent search and
make the whole chain distributed.

~~~
ajross
Been done. Gnutella et. al. were doing distributed search by design, because
Napster's central index was ruled to be infringing. Everything old is new
again...

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cookiecaper
Pretty sad. Google links almost completely to copyrighted content. Why isn't
it illegal?

This article reads much more like a condemnation of ISOHunt specifically,
though.

~~~
Perceval
Indeed. Can Google be sued for this kind of search capability:
[http://www.google.com/search?q=%22always%20sunny%20in%20phil...](http://www.google.com/search?q=%22always%20sunny%20in%20philadelphia%22+filetype%3Atorrent)

~~~
chancho
It sounds as though the issue is whether or not the site responds promptly to
takedown requests. Any torrent site that did would not be popular for long.
They probably don't bother sending those requests to Google because Google
doesn't host the torrent files, but if someone did manage to find a way to
disseminate torrents using _only_ Google then you can bet Google would get on
that. They do it with YouTube, and fast too.

~~~
thwarted
The content of a torrent file is closer to an HTML link. The torrent file
contains no copyrighted content, so a take down notice doesn't make much
sense. In fact, the torrent file only lets you _recognize_ the content, and
doesn't strictly provide a link to it, for that, you need a tracker.

------
olegk
Tell that to Google.

~~~
grellas
Google is not similarly exposed to liability just because its search function
can be used to facilitate infringement.

The issue here is one of potential liability for _contributory_ infringement.

When a party's technology is being primarily used for infringing purposes, and
its independent, non-infringing uses are at best marginal, such a party can be
held liable for contributory infringement of the copyrights at issue. That in
essence appears to be what the court concluded here.

Contributory infringement, though, does not extend to technologies that can
only incidentally be used for infringing purposes - were it otherwise, then
any technology involved in facilitating an infringing use could be swept in
(e.g., the manufacturers of hardware devices used to play the infringing
material).

This line of legal reasoning has gradually evolved from the 1980's Betamax
case through Napster to a variety of iterations in the modern law. It is a
complex area of law but, in essence, it defines a level of culpability by
which the law deems it fair to impose liability on a party not directly
infringing on copyrighted materials but whose technology facilitates such
infringement. Here, the court concluded that IsoHunt was sufficiently culpable
to be held liable in spite of the fact that it can be used for innocent
purposes as well.

Google's search function, on the other hand, obviously has major uses apart
from those facilitating copyright infringement and Google is nowhere close to
being a contributory infringer even though its technology might be misused for
this purpose.

~~~
jellicle
But Google's business is actually 99.99% infringing. Everything is
copyrighted, including but not limited to this website. (Under current U.S.
law, Federal government publications are nearly the only thing not
copyrighted.) In no case has the copyright owner expressed permission for you
to copy the copyrighted text to your computer. And yet, that is very very
close to 100% of Google's business - locating copyrighted texts and sending
users to them in order for those users to copy them, presumably illegally, to
their computers. Only in the very rare case (.gov websites, users finding
their own websites) is the user not infringing copyright. Nor is it possible
for the user to determine whether he/she is infringing copyright; for example,
the text on a .gov website could be written by a government contractor and
therefore be copyrighted.

~~~
grellas
I was not trying to defend the current law or any of its possible
inconsistencies but only to give a sense of how it applies to this type of
situation - as that law is currently interpreted, there is a near-zero risk
that Google's search business will be held to create liabilities for
contributory infringement.

That doesn't mean the law is correct and people can reasonably differ on what
is or isn't fair under copyright (or even whether copyright should exist) -
but that argument is a philosophical one and not one for explaining what the
current law is.

------
k0n2ad
"These technological details are, at their core, indistinguishable from the
previous technologies"

 _cough cough_

------
sebastian
All this is doing is just giving the bright minds behind the services that we
love so much reasons to move and incorporate offshore and stop worrying about
the evil power organizations such as MPAA and RIAA have to sue them, shut them
down, send them to prison, you name it.

File sharing is not stealing. File sharing is caring.

[http://www.vincentchow.net/wp-
content/uploads/2008/09/piracy...](http://www.vincentchow.net/wp-
content/uploads/2008/09/piracy.png)

------
elblanco
Then the popular torrent search engines should become really crappy general
purpose search engines, that just happen to be good for torrent searching.

------
zandorg
I love ISOHunt! Confound those lawmakers...

