The movie studies have won another major legal victory in the ongoing war against file sharing, this one against an individual (Gary Fung) who ran a number of torrent search sites, including the popular isoHunt. Although the defendant had argued he was providing just another search engine, the judge has ruled that Fung's legal team had neglected to rebut the studio's primary arguments, and Fung himself had a history of statements showing that he encouraged copyright infringement. Although the ruling establishes liability, there's no word yet on the sanctions that Fung will face.

Granting a summary judgement requires that the judge interpret all the arguments in favor of the losing party, and still find that their opponents have made a winning case, so it's a pretty difficult standard to meet. Fung and his lawyers, however, seem to have made the job a bit easier.

"The material facts supporting Plaintiffs' claims are almost wholly unrebutted," the judge Stephen Wilson ruled. "Generally, Defendants' rest their case on legal arguments and meritless evidentiary objections, and offer little of their own evidence that directly addressed Plaintiffs’ factual assertions."

So, for example, the studios brought in expert witnesses to argue that a statistical sampling of the content and server logs showed that nearly all of the content infringed copyrights, and about half of the downloads were made within the US. The defendants dismissed statistical sampling as "junk science," but didn't bother bringing in any sort of expert witness to explain why it wasn't a valid approach, or wasn't widely accepted by statisticians. (Admittedly, it is widely accepted, so this would have been hard.)

The arguments that Fung's sites were just another search engine that happened to pick up copyrighted content were torpedoed by a combination of the sites themselves and Fung's own words. Evidence was introduced that the search code was specifically tuned to find copyrighted material: "Defendant Fung additionally directs the program to specific web pages containing terms like 'seinfeld-videos,' which one would infer contains infringing content from the television show Seinfeld." One of his sites also displayed a list of the top-20 grossing movies in the US, with links to copies of each, while another had categories that included "High Quality DVD Rips" and "TV Show Releases."

Fung caused problems for himself via his blog, which contained entries questioning whether copyright infringement was really theft, and offered advice on how to find movies and prepare the files for burning to DVDs. He also admitted to using his own site to obtain episodes of Lost, The Simpsons, and The Lord of the Rings.

As a result, Judge Wilson dismissed the search engine arguments as little more than a distraction, and treated the case as if it were the son of Grokster. "Defendants' technology is nothing more than old wine in a new bottle," Wilson wrote, elsewhere noting that "The Fung sites are an evolutionary modification of traditional 'peer-to-peer' sharing sites such as Napster and Grokster." (Designed might be more accurate, although the degree of intelligence involved is a bit questionable.)

Fung's lawyers were even schooled for using an argument that the Supremes had explicitly rejected in the Grokster case.

So, Fung's sites were clearly being used for infringement, Fung himself was fully aware of it, and legal precedent pretty clearly indicates that the sites meet the criteria established for inducing infringement.

The last hurdle for a summary judgement seemed to be the Fung team's argument that a lot of the content on the sites was automatically generated in response to user queries, and thus should fall under the DMCA's safe harbor provision, which absolves service providers from liability for content posted by their users. That, however, ignores the text of the safe harbor provision itself, which Judge Wilson quotes: "upon obtaining such knowledge or awareness [of infringing material], acts expeditiously to remove, or disable access to, the material." Fung did nothing of the sort.

It's not clear whether Fung intends to appeal, but any appeal would have to deal with the legal record in the case, and the decision makes it clear that there's a huge body of unrebutted evidence that will be difficult to overcome. All that seems to be left at this point is a decision on sanctions. The judge has scheduled a status conference for the case in early January.