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Ninth Circuit Backtracks on DMCA Safe Harbors in isoHunt Case

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By William Peacock, Esq. on March 27, 2013 4:43 PM

The Ninth giveth, and the Ninth taketh away. Seven days after releasing the Veoh decision, which buttressed the DMCA Safe Harbor protections by extending protection to providers that know that they host copyrightable material and that their services could be used for infringement, the same three judges trimmed away DMCA protections in the isoHunt case.

In both Veoh and isoHunt, a company made money off of advertising on a site full of user-submitted content, much of which infringed upon others' copyrights.

The distinction seems to be in the company's role. While Veoh seemed to take a willfully ignorant stance, isoHunt's founder actually participated on his own site, encouraging users to upload infringing content. That difference apparently places him outside of the following safe harbors:

§ 512(a) Transitory digital network communications

Service providers aren't liable for users infringement if they are a neutral conduit for user-initiated connections. Connections should be done via automated technical processes and data should be stored only temporarily and transmitted unmodified.

Torrent trackers do exactly that, right?

As we discussed yesterday, torrent trackers essentially take requests from users and match them up with other users, allowing peer-to-peer transfer of tiny chucks of the overall file.

The statute defines a service provider as one who connects "between points specified by a user." According to the court, since Fung doesn't meet the service provider definition, the exceptions for automated processes don't apply.

We don't get it. In order to be a "service provider," you have to use user-selected recipients. The safe harbor, however, exempts "service providers" who use automated processes to select recipients.

It seems factually impossible.

§ 512(c) Neutral Storage Repositories

Storage providers aren't liable for storing users' infringing content, absent actual or "red flag" knowledge of infringement.

Users submitted files to isoHunt. Fung removed them after receiving DMCA notices. He should be eligible, right?

Not exactly. Remember that Fung was, to borrow from a balding man, "not only the president, but also a client" of the site. He solicited user submissions, curated torrents that led to top box office movies, and admittedly downloaded pirated content off of the site. That amounts to "red flag" knowledge.

Providers lose protection under this safe harbor if they either directly make money off of the infringement or if they have the ability to "control and patrol" the pirates' activity.

Fung made his money through advertising, which depends on the site's content. His income depended on the traffic and popularity derived from the site's 90 to 96 percent pirated content.

He also exercised plenty of control - both by encouraging users to submit more pirated content and by weeding out fake, virus-infected, and bad or abusive torrents.

§ 512(d) Information Location Tools

This is the search engine or content curation exception. On its face it seems to apply, but its exceptions for "red flag" knowledge of infringing content, control over content, and financial benefits all mirror those of § 512(c). Based on the above facts, Fung and isoHunt aren't protected.

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