Intellectual Property Law

The answer to the question of whether BitTorrent tracking sites are legal in the United States depends on who is asked. Now it seems the Motion Picture Association of America is prohibited to say publicly why the movie industry believes the answer is "no."

Ultimately, the U.S. Supreme Court might provide guidance, as there has been no definitive ruling on the merits. A case likely headed the high court's way is one brought by the MPAA accusing tracking site  isoHunt and its owner, Gary Fung, of copyright infringement. The offense: the site points the way to torrents of movies and other copyrighted material hosted elsewhere.

U.S. District Judge Stephen Wilson is presiding over the case in Los Angeles and considering an isoHunt motion to dismiss the case, brought in 2006. Two weeks ago, Wilson asked the MPAA to explain how BitTorrent works "in connection with the copying of actual files and the services defendants provide." Wilson also asked the MPAA to explain whether the defendants "place any product into commerce for purposes of contributory infringement."

Judge Wilson ordered the MPAA to respond Friday to questions that cut to the heart of the dispute. The MPAA met the deadline, but answered under seal. Ira Rothken, Fung's attorney, said in a recent interview the questions "get at the crux of the whole case."

UPDATE

Elizabeth Kaltman, an MPAA spokesman, said there was nothing nefarious about Hollywood's lobbying arm filling its brief under seal. She noted that some of Rothken's briefs are under seal, and she said some information in the MPAA response touches on that sealed material.

"In responding to the court's questions, plaintiffs made reference to materials that the defendants had designated as confidential under the protective order," she said.

Rothken was not immediately available for comment.

See Also:

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• MPAA: Drink Duff Beer, Don't Steal Homer's New Flick
• Friday Followup: MPAA Won't Say Why It Fought Pre-Texting Ban
• DRM is Dead; Long Live DRM