A website used for searching for entertainment content—much of it pirated—is asking for a do-over in a case it lost last month to Hollywood.
Gary Fung, the operator of isoHunt, wants a federal appeals court to reconsider its decision in March to uphold a ruling by a lower court forcing Fung to filter movie and TV search terms from his site.
According to a filing submitted Wednesday with a federal appeals court in California, errors made by a panel of appeals judges last month warrant a rehearing of Fung's case by the panel or before all the judges on the appeals court.
According to Fung, he should get a reprieve in his case because of its ramifications on free speech on the Internet.
In its ruling, the appeals panel used remarks made by Fung online, which he argues were made sarcastically, as evidence that he intended to induce copyright infringement through isoHunt. The site allows searchers to find online content, much of it pirated, stored through BitTorrent.
"Free Speech is chilled when sarcastic remarks are held to induce infringement," Fung argued in his request for rehearing.
He noted that the appeals panel ignored evidence contradicting the notion that he supports copyright infringement. That evidence includes:
- isoHunt provides services that duplicate those provided by Google and Yahoo.
- It promotes non-infringing uses of BitTorrent, including software distributions.
- Copyright infringements, rather than a boon, are a bane to Fung because they're a source of problems and a burden on his freedom.
- Fung doesn't aim to promote infringement and opposes copyright abuse.
- isoHunt meets requirements of the Digital Millennial Copyright Act (DMCA) by providing a way to process "take-down" requests of copyright holders.
In Fung's filing, he maintained that the appeal panel's decision was a "serious miscarriage of justice" because it wrongfully denies him a jury trial based on liability findings founded on disputed facts and application of erroneous legal standards.
Particularly offensive to Fung was the way the plaintiffs in the case—Columbia Pictures, Disney, Paramount, Tristar, Fox, Universal, and Warner Bros.—combed the Internet to find any remarks he may have made to support their assertion that isoHunt's operator encouraged infringement at his site.
"Liability based on messages culled from digital storage that are remote from any specific infringements at issue will severely chill Free Speech," he maintained in his court filing. "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," he added. "Outspoken individuals will avoid certain areas of technological development."
Fung's web properties were hit with an injunction from a federal district court in May 2010. The injunction bars the properties from serving up leads—called "torrents"—to content covered by copyrights. Fung has been trying to overturn that injunction since that time.
It's unknown at this time when the appeals panel will act on Fung's request for a rehearing.