Yesterday, the Ninth Circuit Court of Appeals ruled in favor of Hollywood studios in a lawsuit against the popular torrent indexer we know as isoHunt. The judge explained why isoHunt and its founder Gary Fung are not fit for safe harbor.
With several million torrents indexed and more than 7.5 million visitors, isoHunt was one of the most beloved services of this kind. We say “was”, because the service is probably going to close its gates permanently after the Ninth Circuit decided to hold the website and its owner accountable for inducing copyright infringement.
Judge Marsha Berzon notes (read the entire ruling here) that isoHunt was doing more than just gathering and classifying torrent files.
“Each time a torrent file is added to isoHunt, the website automatically modifies the torrent file by adding additional backup trackers to it,” she said.
Moreover, she also pointed to the fact that isoHunt kept an updated list of popular movies and TV shows, and featured a handy electronic message board.
A handful of movie studios, headed by Columbia Pictures, filed the lawsuit, claiming that isoHunt is guilty of inducing copyright infringement. The district court found Fung liable for contributory infringement; as a result, the court issued an injunction in which Fung was told to cease all activities that facilitate infringement of the plaintiff’s copyrighted content – that means removing roughly 21.000 works, including Dave, 21, and Cars.
In response, isoHunt’s founder used the Grokster case to point out that his service was doing nothing but indexing content.
“We cannot agree,” Judge Berzon replied.
“Unlike patents, copyrights protect expression, not products or devices. Inducement liability is not limited, either logically or as articulated in Grokster III, to those who distribute a ‘device.’”
However, the movie studios still had to prove Fung’s intent to induce copyright infringement, and apparently they did.
“Like Grokster’s advertisements—indeed, even more so—Fung’s posts were explicitly ‘designed to stimulate others to commit [copyright] violations,’ and so are highly probative of an unlawful intent,” the judge wrote.
To be more specific, the plaintiffs proved that isoHunt invited its users to “upload a torrent” for each of the 20 highest-grossing movies playing in the U.S. theatres at the time.
The judge agreed with the studios, who said that “if one provides a service that could be used to infringe copyrights, with the manifested intent that the service actually be used in that manner, that person is liable for the infringement that occurs through the use of the service.”
Fung’s was also denied safe harbor, as the Ninth Circuit believes that torrent trackers are not fit to be called “service providers” under the DMCA.
Combine that with the circuit’s decision that Fung had “red flag” knowledge about a wide range of infringing activities, and you’ll have a judge Berzon noting that “the record is replete with instances of Fung actively encouraging infringement, by urging his users to both upload and download particular copyrighted works, providing assistance to those seeking to watch copyrighted films, and helping his users burn copyrighted material onto DVDs. The material in question was sufficiently current and well-known that it would have been objectively obvious to a reasonable person that the material solicited and assisted was both copyrighted and not licensed to random members of the public, and that the induced use was therefore infringing.”
Fung’s only victory was over the injunction. The court of appeals asked the lower court to modify the injunction’s wide range accordingly.
In response to this ruling Henry Hoberman – the global general counsel for the MPAA, said:
“This ruling affirms a core principle of copyright law: Those who build businesses around encouraging, enabling, and helping others to commit copyright infringement are themselves infringers, and will be held accountable for their illegal actions. It also strikes an important blow in the fight to preserve the jobs of millions of workers in the creative industries, whose hard work and investments are exploited by rogue websites for their own profit.”