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ISOHunt founder Gary Fung's insistence on pandering to freetards has again cost him dear.

Last week his appeal case earned him a permanent injunction, including possible jail time if he breaches the order. Fung was appealing against a suit originally filed by Hollywood (Columbia Pictures is the named plaintiff) against his torrent tracker in 2006.

Fung's lawyers had argued that in the landmark 2005 Grokster case, the supremes had only intended liability to apply to devices. Judge Stephen Wilson rejected this cat-ate-the-homework defence.

He pointed out that the Supreme Court had referred to devices, products and tools interchangeably. "The clear import of the Supreme Court's opinion was that a defendant may be secondarily liable for his conduct and activities, separate and apart from any products, devices or tools he distributes," ruled Wilson.

Fung is enjoined from copyright infringement activity - not restricted to torrents - and has 14 days to comply. Five years after the Grokster ruling, there still seems to be some ignorance about the implications for secondary infringement. Why aren't authors of FTP software thrown in jail?

As with the recent LimeWire ruling, the ISOHunt is pretty clear.

Fung and chums were judged to have actively encouraged infringement and their "very business model, at its core, depends on copyright infringement", Judge Wilson pointed out. Fung failed to take steps to mitigate the infringement, keeping a Top 20 TV shows and Top Searches features prominent.

In other words, there are several hurdles before you can merit a secondary infringement judgment, and Fung jumped them all: you have to be pretty determined to earn one.

The judgment is here. ®

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