IsoHunt Mystery Resolved: Judge Wilson finds Gary Fung's BitTorrent Sites Liable for Contributory Copyright Infringement
The copyright infringement claims brought against Canadian Gary Fung and his .torrent sites have at last been resolved. On December 21, 2009, Judge Wilson of the Central District of California found Fung and several of his .torrent sites liable for inducement of copyright infringement. Wilson's decision was based largely the same grounds on which other operators of peer-to-peer filing sharing were found liable in Grokster, Napster and Usenet.
To be liable for inducing copyright infringement, a defendant must have knowledge of another's infringement and undertake purposeful acts aimed at assisting and encouraging this infringement. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, 545 U.S. 913, 936-37 (2005). This means that the plaintiff must first show that there has been an act of direct infringement by third parties. A&M Records, Inc. v. Napster, Inc., 219 F.3d 1004, 1013 (9th Cir. 2001). In the case of peer-to-peer filing sharing, infringement can occur both when a copyrighted work is uploaded (this violates the copyright holder's distribution right) and when it is downloaded (this violates the copyright holder's reproduction right). 17 U.S.C. §§ 106 (1), (3).
Here, for evidence that direct copyright infringement had occurred, Judge Wilson relied on a plaintiffs' expert who testified that 95% of the files available through Fung's sites were copyrighted. This evidence was corroborated by testimony from users who admitted downloading copyrighted material from Fung's sites. For evidence that infringement had occurred in the U.S., Judge Wilson relied on IP-address data which showed that infringing downloads took place in the U.S.
Fung argued that his sites' .torrent files were not directly involved in illegal downloads, but merely pointed users to tracker sites that were responsible to initiating the user downloads. (See discussion in our December 7, 2009 post). However, Judge Wilson found that when a user of a BitTorrent sites clicks on a "download torrent" button, this causes the downloading "of the actual content item referenced by the dot-torrent file" to occur, without any further action by the user. Even though in reality, the torrent file is directing the user's computer to a BitTorrent tracker and the content files are actually downloaded from third party users' computers, the user is effectively unaware of this. Judge Wilson stated: "dot-torrent files and content files are, for all practical purposes, synonymous. To conclude otherwise would be to elevate form over substance."
As evidence that Fung and his sites had induced this direct infringement, Judge Wilson cited material on Fung's websites that showed knowledge the sites were being used to download infringing material and that encouraged users to provide access to infringing material:
• The sites contained categories from which users could select downloads, including "Top 20 Movies," Top 20 TV Shows." And "Box Office Movies." One Fung website contained files in lists entitled "High Quality DVD Rips" and "TV Show Releases" -- all of which Wilson found "correspond to copyrighted content."
• The meta tags used on Fung's websites often included "warez" as a header. The term "warez" is used to refer to pirated content.
• The Isohunt website maintained a list of the highest grossing movies in U.S. theatres and asked users to upload versions of Box Office Movies.
• An expert who opined that approximately 95% of downloads occurring through Fung's sites were of infringing content.
• Fung had personally made a number of statements regarding the copyrighted nature of the works on his sites. Some seemed to have merely shown a cavalier attitude towards infringement. For example, in one interview, Fung stated, "Morally, I'm a Christian. 'Thou shalt not steal.' But for me, even copyright infringement when it occurs may not necessarily be stealing." Other statements allegedly included references to aiding individuals in the download of copyrighted materials such as the movies Matrix Reloaded and Lord of the Rings: Return of the King.
• There were numerous instances in which Fung, in the context of user forum discussions, helped website users download copyrighted material.
• Fung's websites were "full of statements by moderators" who assisted users in downloading copyrighted files.
• Fung's websites included search tools that assisted users in locating infringing material.
• Fung's websites made money by advertising. Fung solicited ads by promoting the availability of copyrighted material on his sites.
The Court also made short work of Fung's assertion of entitlement to a safe harbor under the DMCA as a "provider of information location tools". 17 U.S.C. § 512(d). DMCA safe harbors generally do not apply to websites that are engaged in secondary copyright infringement. As Judge Wilson phrased it: "In many ways, the Digital Millennium Copyright Act is simply a restatement of the legal standards establishing secondary copyright infringement -- in many cases, if a defendant is liable for secondary infringement, the defendants is not entitled to Digital Millennium Copyright Act immunity."
The information location tool safe harbor requires the operator not to have actual or constructive knowledge of actual infringement, or to receive a direct financial benefit from such infringement. Here, Judge Wilson found that Fung and his sites "had reason to know of their users' infringing activities." As such, they were not entitled to this safe harbor.
Fung countered by asking who Yahoo! and Google, whose search engines also allegedly permit users to locate torrent files and initiate downloads, are entitled to the DMCA safe harbor. Judge Wilson responded Yahoo! and Google's liability is irrelevant -- what matters here is the application of the law to Fung's actions.
Ultimately, Judge Wilson found that Fung's BitTorrent technology was "nothing more than old wine in a new bottle" and presented the "same general pattern" presented in Grokster, Napster and Usenet. While BitTorrent technology differs from older file sharing protocols, at their "core", the technological details were "indistinguishable." "In fact," Judge Wilson opined "Defendants' technologies appear to improve upon the previous technologies by permitting faster downloads of large files such as movies. Such an improvement quite obviously increases the potential for copyright infringement."
