Worth the Wait: 9th Circuit Delivers Big Win for Creators in Isohunt Case

This morning, the Ninth Circuit Court of Appeals made a strong statement about the liability of sites that willingly facilitate online copyright infringement and overwhelmingly affirmed the United States District Court for the Central District of California’s decision in Columbia Pictures Industries Inc., et al., v. isoHunt Web Technologies, Inc

The decision comes after a nearly seven year legal battle between film studios and Gary Fung’s filesharing websites over the latter’s inducement of copyright infringement.   The case concerned BitTorrent peer-to-peer file sharing and was originally brought in September of 2006, when a series of film studios filed a complaint alleging that the defendant’s websites “induced third parties to download infringing copies of the studios’ copyrighted works.”  The websites in question, run by Gary Fung and his company isoHunt Web Technologies, included both “trackers,” which coordinated connections between peers, and “indexers,” which list available torrents to download.  IsoHunt, Fung’s “flagship” site, not only indexed torrents and allowed searches, but also automatically modified indexed torrents by adding backup trackers to them, thereby making them more reliable for downloaders.  

For a full procedural history and additional information about Fung’s appeal, please see Jesse Creed’s recent post Ninth Circuit poised to address torrent site liability.  In his appeal to the Ninth Circuit, Fung attempted to negate the lower court’s finding of liability.  The Ninth Circuit stood by the lower court’s ruling and in addition begins with a comprehensive discussion of BitTorrent technology and the online torrent ecosystem that will be invaluable to future courts faced with deciding these issues.

In assessing liability for inducement, the court relied on four elements of inducement liability enunciated in the Supreme Court’s 2005 Grokster decision: “(1) the distribution of a device or product, (2) acts of infringement, (3) an object of promoting its use to infringe copyright, and (4) causation.”  After rejecting isoHunt’s argument that Grokster only applied to “devices” and not services, the court found that the plaintiff’s met their burden of showing that the defendant’s actions were sufficient to satisfy each element and left further evaluation of causation to the District Court for use in calculating damages.

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