Simon N. Pulman, associate, Cowan, DeBaets, Abrahams & Sheppard, is a transactional attorney practicing primarily in the areas of entertainment and media law, including film, television, publishing, interactive entertainment and digital media. Prior to joining the firm, Mr. Pulman worked as an Associate in the Labor and Employment practice group at Paul Hastings LLP and as Business Development Manager at Starlight Runner Entertainment, one of Fast Company’s “10 Most Innovative Companies in Media.” In addition, Mr. Pulman worked during law school as a legal intern in the legal departments of Country Music Television and 7 For All Mankind. Mr. Pulman is a graduate of Duke University and Vanderbilt University Law School.
The United States Court of Appeals for the Ninth Circuit substantially affirmed a district court judgment in favor of several film studios inColumbia Pictures Industries v. Fung, holding on March 21st, 2013 that the defendant was liable for contributory copyright infringement because its bittorrent hosting service, known as isoHunt, induced third parties to download infringing copies of the studios’ copyrighted works. The Ninth Circuit also held that the defendant was not entitled to protection from liability under any of the safe harbor provisions of the Digital Millennium Copyright Act (DMCA).
Defendant Gary Fung owns several torrent-related sites, most notably isoHunt.com, that facilitate the identification and sharing of files through a peer-to-peer network based upon the bittorrent protocol. Bittorrent sharing allows users to download large files from a decentralized network by downloading small sections from many different users. The “torrent” files, as hosted by Fung’s sites, contain only critical data for locating, authenticating reassembling the larger file from its fragments. Isohunt.com also modified each torrent file it stored by adding a backup tracker to it, which altered the file to make it more likely that a user will be able to download all sections successfully.
Columbia Pictures Industries, together with several other major movie studios, brought suit against Fung and several “John Does” in 2006. The U.S. District Court for the Central District of California held Fung liable for contributory infringement for inducing others to infringe on the plaintiff movie studios’ copyrighted material. It also held that none of the DMCA safe harbor provisions were applicable to Fung and thus granted summary judgment in favor of the studios. Fung appealed.
The Ninth Circuit analyzed isoHunt.com under the standard for inducement liability set forth in the U.S. Supreme Court decision Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd. The “inducement rule” has four elements: (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. The court held that the plaintiffs had satisfied each of the four elements.