Before you can understand the latest file-sharing case, it might help to understand how Bittorrent works. Let's say you want to download a pirated movie (or a legitimate copy of free software). You go to an indexing site, like isoHunt, search for the file, and download the .torrent key. This key contains information on the file size, provides links to "trackers," and describes the number of pieces that make up the file. A separate program uses this file to locate fellow users and transfer files between them.
Trackers are like air traffic controllers. They coordinate users' links to each other, as all transfers of the actual movie are done peer-to-peer. Neither the trackers nor the indexing sites actually host any pirated content.
Unlike many file-sharing sites that have lost the copyright-battle (such as Grokster, Napster, etc.), isoHunt is merely a search engine. It doesn't host files. Users post links to ".torrent" files, which to reiterate, are not actual content - they are keys to the content.
The site's founder, Gary Fung, also owns two of those "trackers," which were also at issue in this case. Again, these trackers don't pass along content - they pass along connections between content-sharers.
In Grokster, the Supreme Court created the copyright infringement "inducement rule," which created liability for file-sharing products. There are four elements to the theory:
- The distribution of a device or product,
- Acts of infringement
- An object of promoting its use to infringe copyright, and
Of course, isoHunt's creator Gary Fung didn't actually create any program, protocol, or device. His sin, per the Ninth Circuit, was the service of knowingly facilitating infringement. The court drew an analogy to a copy shop that advertises its willingness to copy copyrighted materials. Though they did not make the copy machines, they performed the service of making the copies.
(Not sure if that analogy fits here. Fung didn't copy anything. The best equivalent would be a copy shop that points customers to each other, like a bootlegger dating service, to share content.)
As for acts of infringement, that one is pretty indisputable. Bittorrent users predominately share pirated products. An expert in this case stated that 90-96 percent of isoHunt's files were copyright infringing materials.
Promotion was also pretty clear here. At one point, isoHunt had a top box office movies page, which had links to torrents for pirated movies or, if none were available, would ask users to submit files. Fung also allegedly posted requests for user uploads and links to pirated materials in the site's forum.
For the final element, causation, the court adopted the broad proposition that plaintiffs only need to prove that "acts of infringement by third parties" were caused by the Fung's services. In other words, if someone provides a service that can be used to violate copyrights, and manifests and intent for it to be used in that manner, they are liable for the infringement that occurs.
There's a lot more to this case, including erosion of DMCA Safe Harbors. We'll be back later this week with that discussion.
- Columbia Pictures v. Gary Fung, isoHunt (Ninth Circuit Court of Appeals)
- File-Sharing Service isoHunt Illegally Fosters Piracy, Appeals Court Says (Wired)
- 9th Circuit Makes DMCA Safe Harbor a Little Bit Safer (FindLaw's Ninth Circuit Blog)