The following is a piece written by Jesse Max Creed of Copyright Alliance Legal Advisory Board firm Munger, Tolles & Olson LLP.
The Ninth Circuit is poised to address yet again the issue of copyright liability for sites that induce infringement. The case, Fung v. Columbia Pictures, 10-55946 (9th Cir.), involves BitTorrent, yet another iteration of so-called “file sharing” technology that efficiently transfers large files over the internet. While BitTorrent is something of a new kid on the block, Fung is fairly typical in its fact pattern. The district court ruled that Gary Fung and his BitTorrent sites induced copyright infringement and were disqualified from the safe harbors set forth in the Digital Millenium Copyright Act (DMCA). In reaching this result, the court opined on the interaction between the DMCA and inducement liability.
isoHunt and BitTorrent Technology
Fung operated several BitTorrent websites such as Isohunt. BitTorrent is a particular type of peer-to-peer file sharing technology that follows in the footsteps of Napster and Grokster but is more efficient and quicker. Napster kept a centralized server to index all the songs on the computers of online users to allow users to search for and download content. Grokster decentralized the indexing function by turning some users into “supernodes” that indexed large swaths of the files on the network. In a BitTorrent network, not only is indexing decentralized, but so is the system’s server capacity. A user downloads bits of a file simultaneously from a handful of users that each possess the file, forming a “swarm” that scales the network speeds of potentially countless computers.
Fung’s torrent sites enabled users to search for and download BitTorrent files, including “dot-torrent files”, which are used by BitTorrent client programs to initiate file downloads. The vast majority of the files offered through Fung’s sites were copyrighted content for which Fung did not have permission to distribute. The Studios, plaintiffs in the case, filed suit. They introduced substantial evidence to demonstrate that Fung induced users to infringe the Studios’ copyrights, including:
- The sites displayed lists to organize the files by keying them to popular consumer content, including “Top Searches,” “Top 20 Movies,” “Top 20 TV Shoes,” and “Box Office Movies.”
- The sites encouraged users to upload dot-torrent files of copyrighted content to the website.
- The site also featured a discussion board where Fung responded to queries users posted on issues such as how to make a DVD from an unauthorized copy of the film Pirates of the Caribbean, how to watch films on the site, and how to search for specific episodes of Star Trek: Enterprise.
District Court’s Ruling