Injunction to issue against IsoHunt in a busy month for the courts

There has been some confusion over whether an injunction has issued yet in the US IsoHunt case. In short, an injunction has not yet issued against IsoHunt. However, US District court Judge Stephen Wilson issued a tentative order on March 23, 2010 ruling that a permanent injunction is going to be made against IsoHunt.  A copy of the tentative judgment is available here.

The tentative order contains the judge’s ruling as to why the Court intends to grant a permanent injunction.  In summary, the Court stated that

  • The “Defendants’ inducement liability is overwhelmingly clear”.
  • The Plaintiffs established irreparable harm in three ways: (1) the Defendants (Fung and isoHunt) could not compensate the Plaintiffs for the “staggering volume of infringement”; (2) the distribution of copyrighted works facilitated by IsoHunt result in unstoppable and near-instantaneous  infringements throughout the computer-literate world: and (3) the “availability of  free infringing copies of the Plaintiffs’ works…irreparably undermines the growing legitimate market for consumers to purchase access to the same works”.
  • There is no adequate remedy other than to grant an injunction. The “infringements are a continuing threat, making remedies at law insufficient to compensate for Plaintiffs’ injuries”.
  • IsoHunt  would continue to infringe without being enjoined because its “very business model, at its core, depends on copyright infringement, and Defendants would financially benefit from further infringement”
  • Since the Court’s order of December 21, 2009, IsoHunt  has “not taken steps to mitigate the infringement”.

The tentative order would enjoin IsoHunt from, among other things, facilitating infringement of any present or future works in which any plaintiff (or any parent, affiliate, or subsidiary of a plaintiff) owns the US copyright and which the Plaintiffs have identified to IsoHunt by title.

The Judge set a briefing schedule. The last brief is due April 12, 2010. A final judgment is expected shortly thereafter.

March was also a bad month for other entities engaging in acts that facilitate infringement. Earlier this week, a UK court found Newzbin liable for authorizing and inducing copyright infringement and granted an injunction against that site. Just before that a US court enjoined a website which was found to have been selling counterfeit Louis Vuitton merchandise on trademark and copyright grounds. Last week an Italian Pirate Bay proxy site was closed down by an Italian court.

To round off a busy month, last week the EU Court of Justice also ruled that Google’s use of AdWords was not infringing, but that advertisers’ use thereof could be.

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