The Gary Fung / isoHunt Mystery: Are Torrent Sites Liable for Copyright Infringement Conducted by Third Parties?
Digital media law update: We have now passed the two-year anniversary of the filing of the plaintiffs' motion for summary judgment in the case brought by several content providers against BitTorrent promoter Gary Fung, a 20-ish Canadian resident who operated the torrent site isoHunt. See Columbia Pictures, Inc. v. Gary Fung, Central District of California, No. 2:06-cv-05578. Such a lengthy period to litigate a summary judgment motion is highly unusual, but largely appears to have been caused by the nature of bit torrent technology and the fact that torrent sites are at least one step removed from the file-sharing process.
BitTorrent is a peer-to-peer file sharing technology, or "protocol," that permits individuals to upload and download very large files, such as files for feature films and video games. It breaks up such large files into many smaller bits, so that they can be more quickly transferred between users. The first user creates a "seed" file that consists of the entire movie, song or other file that the user wishes to share. After the availability of this seed becomes known, other users (caller "peers") request and are given different pieces of data from the seed. Once the entire file is distributed among users, then each becomes the source for that portion of the seed file which can then be distributed to all the peers on the network.
The user who first uploads a seed also creates and uploads a .torrent file. This file includes a unique identifying number, or "hash." This file contains metadata about the files to be shared and about the tracker, the computer that coordinates the file distribution. Peers that want to download the file must first obtain a torrent file for it, and connect to the specified tracker, which tells them from which other peers to download the pieces of the file. The tracker maintains lists of the clients currently participating in the torrent (also called the "swarm"). See http://en.wikipedia.org/wiki/BitTorrent_(protocol) for further details.
To locate torrent files, users can use web search engines. There are also torrent sites, like Gary Fung's isoHunt, that provide links to .torrent files (according to briefs filed by Fung, isoHunt "provides a .torrent file to the visitor"). According to Fung's briefs, "The services provide by a torrent site like isoHunt involve functions of data collection, indexing, caching and downloading of a torrent file." At isoHunt, .torrent data files are collected through uploads from visitors and by searching the Internet with automated systems that systematically investigate all accessible hyperlinks, looking for ".torrent files. The .torrent files are cached in a database where there are many thousands of .torrent files. Columbia Pictures v. Fung, Central District of California, Defendants' Supplemental Brief in Opposition to Plaintiffs' Motion for Summary Judgment on Liability (April 25, 2008).
A visitor to isoHunt enters a search query, such as "Phantom of the Opera" into the home page of the website. The search engine looks in the database and returns links to any .torrent files in the database that contain the phrase "Phantom of the Opera." If a user clicks on a link that says "Phantom of the Opera - Lon Chaney", the torrent site will send the .torrent file with that name to the user. The user can then click on the file name to load the file. The user's computer (called the "client") then sends an inquiry to a tracker identified on the .torrent file. The tracker responds by sending the user a list of IP addresses for other users in the "swarm" for the .torrent file, and adds the new user's name to the list, as well. The user's computer then interacts with the other users' computers in the swarm to download a complete copy of the film. Id.
In 2006, several content providers, led by Columbia Pictures, filed suit against Fung, alleging that his sites induce and contribute to the infringing acts of his users. Fung responded that he does nothing of the sort. His sites are merely part of "the collective ecosystem of BitTorrent technology." His trackers "do nothing more than provide connections and are like Internet routers." As such, "[t]hey qualify for immunity under 17 U.S.C. ยง 512(a) as providers of "Transitory Digital Network Communications." His torrent sites are like search engines: "Google connects the users to each other on their mutual request," which is all that isoHunt does, as well.
The plaintiffs filed for summary judgment on their claims in the fall of 2007. After several months with no decision, Judge Wilson asked for supplemental briefing on the nature of bit torrent technology. This briefing was completed in April 2008. However, over a year passed without Judge Wilson reaching a decision. On August 8, 2009, Judge Wilson explained the impasse -- he was having difficulty with the secondary involvement of Fung's sites with the alleged acts of infringement. To prevail on their claims of inducing infringement, contributory infringement and vicarious infringement, the plaintiffs needed to show "whether third parties have used Defendants' website to infringe [their] copyrights." Moreover, the plaintiffs also needed to show that this infringement occurred in the U.S. Accordingly, Judge Wilson requested further supplemental briefing on these issues.
The plaintiffs' supplemental brief argued that infringement in the U.S. using Fung's site had occurred, because Fung's server log showed that copyrighted films had been downloaded repeatedly -- "some thousands of times" -- in a single month. While plaintiffs apparently could not determine which users had made these downloads, their expert witness argued, based on statistical evidence, that "the probability that [copyrighted] works were not downloaded by . . . United States users is for practical purposes zero." Plaintiffs also provided testimony from at least one U.S. user who admitted to having downloaded copyrighted material using Fung's system. Plaintiffs also provided server log data that showed that registered U.S. users had downloaded movie and T.V. files from Fung's system.
Fung's response argued that Plaintiffs' evidence did not show "the involvement of Fund's system in even a single infringing file transfer taking place entirely in the United States." Fung claimed that all that visitors to his sites obtain are .torrent files. .torrent files do not contain copies of copyrighted works, but merely directions to other sites -- tracker sites which directly assist in downloads. So the downloading of Fung's .torrent files cannot constitute copyright infringement. Fung also claimed that to constitute copyright infringement, the plaintiffs were required to show that a U.S. person downloaded infringing material from another U.S. person through Fung's website. While the plaintiffs provided evidence that a U.S. user had downloaded infringing material based on a .torrent file obtained from Fung's sites, they did not show that the infringing material came from U.S. sources.
In reply, the plaintiffs argued that Fung's distinction between his .torrent files and tracker sites was irrelevant. In support, they cited testimony from their expert that "the only purpose of a dot-torrent file is to enable users to identify, locate, and download a copy of the actual content item referenced in by the dot-torrent file. In the normal course, one the user has clicked the "download torrent" button on defendants' websites, the desired content file automatically downloads to the user's computer without any further action from the user." The plaintiffs also cited authority which contested Fung's claim that U.S. computers must be involved on both ends for a download to be actionable under U.S. law.
So are torrent sites, like those operated by Fung, liable for copyright infringement committed by users who download torrent files? As has so often been the case in the P2P world, the courts are having a hard time reaching a decision.
David D. Johnson is a business lawyer whose practice focuses on litigation and other issues relating to digital media and consumer electronics companies. David can be contacted at (310) 785-5371 or DJohnson@jmbm.com.
