• by Wendy Davis  @wendyndavis, May 8, 2008

Gary Fung, owner of torrent search engine isoHunt, is asking a federal court to dismiss a copyright infringement lawsuit brought by the movie industry, arguing that giving users a means of searching for material doesn't violate copyright law.

"To find us guilty is to find the Web at its infancy guilty because it was full of porn, and Yahoo guilty for making a directory of it," isoHunt wrote this week on its blog.

The isoHunt suit has been pending since 2006, when the motion picture group filed a complaint alleging that Fung's company induces and facilitates copyright infringement by enabling people to find pirated movies. Last month, the organization filed papers asking federal district court judge Stephen Wilson to rule in its favor without a trial, arguing that isoHunt provides users with "essential components" for infringement.

IsoHunt recently filed papers opposing that motion, arguing that it offers at least some links to lawful content and that the Digital Millennium Copyright Act provides it with a defense to copyright infringement charges.

In its brief, isoHunt repeatedly compares itself to conventional search engines like Google--arguing that it doesn't host content, but merely enables users to find it. "Just like a traditional search on Google, isoHunt provides to the visitor a means to obtain content rather than the content itself," the company argues.

But legal experts say there's little definitive precedent regarding search engines' liability for piracy. "There's some ambiguity in the law," said Corynne McSherry, a lawyer with the Electronic Frontier Foundation. "The question is still an open one."

She said that the Digital Millennium Copyright Act appears to give search engines a safe harbor from liability, but only if they don't know they are returning links to copyrighted material. The most recent high-profile case to reach an appellate court--a lawsuit by adult entertainment company Perfect 10 against Google for its image search--ended with a split decision. The 9th Circuit dismissed some counts, but also remanded the case to the trial court to determine whether Google knew it was returning links to infringing material--and if so, whether it had a reasonable way to avoid providing access to pirated images.

Another question will likely turn on whether isoHunt encourages users to commit copyright infringement, said Wendy Seltzer, a fellow at Harvard's Berkman Center for Internet & Society. The U.S. Supreme Court in 2005 ruled that peer-to-peer company Grokster was liable for inducing copyright infringement because the company took affirmative steps to encourage infringement.

Separately, the Motion Picture Association of America said Wednesday that another Torrent search company, TorrentSpy, was ordered to pay $110 million after losing a lawsuit. That case was similar to the one against isoHunt, but ended without a resolution of the key legal issues because TorrentSpy destroyed server logs. The judge ruled that TorrentSpy deliberately destroyed evidence, and as a sanction, ended the case in the movie industry's favor.