Torrent decisions

By Dennis Crouch

Columbia Pictures v. Gary Fung (9th Circuit 2013)

Fung's servers (such as torrentbox.com) help users find illicit copies of videos to download and stream. Columbia, Disney, and others sued Fung for inducing copyright infringement while Fung claimed immunity from suit under the safe-harbor provisions of the DMCA. 17 U.S.C. ยง 512. The district court sided with the copyright holders and the 9th Circuit has now affirmed.

Unlike prior cases such as Grokster & Napster, Fung does not actually distribute any software to support the downloading of copyrighted work. No matter, he can still be liable for inducement.

Unlike patents, copyrights protect expression, not products or devices. Inducement liability is not limited, either logically or as articulated in Grokster III, to those who distribute a "device." As a result, one can infringe a copyright through culpable actions resulting in the impermissible reproduction of copyrighted expression, whether those actions involve making available a device or product or providing some service used in accomplishing the infringement. For example, a retail copying service that accepts and copies copyrighted material for customers after broadly promoting its willingness to do so may be liable for the resulting infringement although it does not produce any copying machines or sell them; all it provides is the "service" of copying. Whether the service makes copies using machines of its own manufacture, machines it owns, or machines in someone else's shop would not matter, as copyright liability depends on one's purposeful involvement in the process of reproducing copyrighted material, not the precise nature of that involvement.

Here, the actual acts of infringement are the uploading (distribution) and downloading (reproduction) of the copyrighted works without license. About 90% of the links on Fung's site are directed to this type of material and Fung does not dispute that the site is used by those who wish to infringe a copyright. A key element of inducement under Grokster is that the acts have to have been intended to cause infringement. Here, Fung showed his intent in several ways, including posts to the ISOhunt forum encouraging folks to upload content. The appellate court also identified two ancillary acts as indicative of intent to cause infringement. First, Fung took no steps to keep folks from posting copyrighted material and did not create any filtering technology.  Second, Fung made his money through advertisements. [?]

Regarding DMCA Safeharbors: The DMCA offers a safe-harbor for entities who facilitate copyright infringement with its notice-and-takedown provisions of 17 U.S.C. 512(c).  The safe-harbor does not excuse intentional acts of infringemente and so you might think that a finding of inducement necessarily negates application of the safe-harbor. In an interesting twist, the Ninth Circuit held that it is possible for the safe-harbor to apply even when inducement has been proven because the knowledge requirement under the safe-harbor is stricter and requires different particularized proof than that of inducement. Here, however, the court found sufficient evidence that Fung had red-flag knowledge of particular instances of infringement. 

 

 

6 thoughts on “Torrent decisions

  1. You better be careful with that encryption as locking out all use would necessitate locking out Fair Use, something the courts may (and should) frown upon.

  2. Alun, and, if this solves that problem, the US could stop copyright infringement in the US only by imposing our copyright laws on the ROW.

    At times, I think we need some new paradigm for the internet. Our copyright laws were created in the age of the printing press. They are not well structured to cover file sharing where a server might be located in a different country and provide users in the United States access to US-copyrighted copies without going through government copyright police.

    Methinks it would be better to rely on some form of encryption of high quality files and fixing commercial apparatus in the US so that they could not decrypt the files without authorization of the copryight holder. But isn't that where we are already?

  3. “The thing I don’t understand is how someone could be guilty of providing a device for copyright infringement when according to the anti’s the device has the same structure as every computer in the world”

    Pretty sure that nobody ever said that it has the same structure, they just say that it has the same structure so far as you ever tell us about in an application.

    But even so, so what if it does have the same structure? I can give you an off the shelf Dell with the intent to have you download the latest from the MPAA and suggest to you for you to do so, and thus have induced infringement.

    “So, if the court can point to the device and say it’s structure is why you are guilty of copyright infringement then there MUST be structure for 101.”

    Pretty sure the court doesn’t have to point to the structure of the device. Not only do they not have to look at the structure, note how just now a court completely ignored the law’s explicit mention of a device. Course, the supremes might go ahead and sort this out for you and your fellow statist buddies.

  4. The thing I don’t understand is how someone could be guilty of providing a device for copyright infringement when according to the anti’s the device has the same structure as every computer in the world. So, if the court can point to the device and say it’s structure is why you are guilty of copyright infringement then there MUST be structure for 101.

    You see how odd this all is. That it all ties together. If you misrepresent the technology in one realm it just breaks another realm. That is because of what? Reality. And, reality is that computer software has structure.

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