SAN FRANCISCO, February 21, 2011 — Movie industry lawyers told an appeals court late last week that it should ignore an attempt by Google to get involved in an appeal of a case that they won — even if Google is ostensibly on their side.
The Motion Picture Association of America is fighting off an appeal of a lower court decision last year that enables the movie studios to stem the flow of online movie piracy by barring the BitTorrent search engine isoHunt from hosting, indexing or linking to any Torrents of movies specified by the studios. The decision also mandates that isoHunt filter for keywords that the studios say are associated with copyright infringement.
IsoHunt filed an appeal in December in the Ninth Circuit Court of Appeals. Google swooped in early in February asking the court for permission to file a friend-of-the-court brief explaining why isoHunt should in fact be liable — but not for the reasons given by federal district court judge Stephen V. Wilson.
“Although Google asserts that the district court result should be affirmed on alternative grounds … the bulk of Google’s brief is devoted to attacking the grounds on which the plaintiffs prevailed below and plaintiffs’ legal arguments in support of the district court’s holdings,” responded the movie industry’s lawyers in a brief filed late last week with the court.
Because Google’s brief really is a brief opposing their position, the company’s lawyers have missed the filing deadline, and the friend-of-the-court brief shouldn’t be allowed, argue the MPAA’s lawyers — one of several technical arguments that they used.
For its part, Google argues that the federal district court should not have tied the issue of inducing copyright infringement to the availability of the DMCA’s safe harbor provision.
Instead, the court should have arrived at its conclusion based on some basic facts that showed that isoHunt failed to fulfill some basic requirements in the safe harbor section of the DMCA, Google argued.
Google sees the lower court decision as a dangerous development that gives content-owners a powerful new weapon.
“Under the district court’s approach, opportunistic litigants would doubtless see such claims as an easy way to force online service providers into expensive litigation,” wrote Google’s lawyers. “But a service that demonstrates full DMCA eligibility in response to such charges should not have its safe-harbor protection left in limbo until it goes to the considerable burden and expense of defending against an inducement claim.”
The movie industry’s lawyers argue that the concern is “implausible,” and “unsubstantiated.”