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Studio Fight Against IsoHunt Gets Trial Date

Hollywood studios have established the copyright liability of a popular torrent indexer. Now comes the push for damages.

On Nov. 5, Hollywood's biggest studios will attempt to win hundreds of millions of dollars in damages against IsoHunt, which was once one of the larger BitTorrent indexers, counting some 7.5 million total unique visitors at the height of its popularity.

In March, an appeals court affirmed the liability of IsoHunt for inducing users to infringe plaintiffs’ copyrighted material through the trading of popular movies and TV shows.

Now that the case has been remanded down to the trial court, U.S. District Judge Stephen Wilson will be presiding over a trial that determines what amount of money will compensate studios for the infringements.

The bar to get monetary damages isn't high at this point.

In an order on Wednesday, Judge Wilson says that "Plaintiffs will need to prove that, for each work, they 1) owned the copyright; and 2) that an American user downloaded a Dot-Torrent file of that work from one of Defendants' websites."

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The bigger question appears to be how much damages the plaintiffs will take home.

Originally, the plaintiffs, led by Columbia Pictures, submitted 44 infringed works, but plaintiff attorney Steven Fabrizio aimed to increase the titles in dispute to about 5,000 works. The latest order allows the studios to list these works in a further statement.

Statutory damages for copyright infringement run anywhere from $750 per work to $150,000 per work if the infringement is willful. That would theoretically put the damages anywhere between $3.75 million all the way up to a whopping $750 million. However, more typically, statutory damages usually falls between $10,000 to $50,000 per work, putting the better odds on a verdict worth between $50 million and $250 million.

For the trial, IsoHunt's leaders have recently brought in attorney Michael Elkin, who is notable for handling Aereo's defense against television broadcasters.

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In his Wednesday order, the judge also deferred outcomes on two other issues.

On sanctioning the defendants for the failure to preserve evidence, Judge Wilson leaves it to a magistrate judge to decide a proper penalty for not keeping certain evidence that appears to have not mattered in the end, but could have with a different 9th Circuit outcome.

And as for an injunction over the continued foreign operation of IsoHunt, Judge Wilson asks for more briefing to determine the feasibility of one plan proposed by the studios aimed at ensuring that American users don't participate in a IsoHunt-related torrent swarm.

E-mail: Eriq.Gardner@THR.com
Twitter: @eriqgardner