A group of Hollywood studios, including Disney, Twentieth Century Fox, Universal, Warner Bros and others in September 2006 brought a case against Canada-based torrent search site isoHunt and its owner, Gary Fung, alleging that they enabled and encouraged wide-scale copyright infringement. Well, earlier this week, a federal judge in California sided with the studios, issuing a summary judgment against Fung and his web sites.
It’s unclear whether isoHunt will appeal the decision, but for now the site is still up and running. In the meantime, though, the judgment is bad news for other torrent tracking and indexing sites. That’s because even though they might not host files themselves, by linking to Hollywood movies and TV shows, they — like isoHunt — could be found guilty of inducing users to infringe on copyrighted material.
And infringe isoHunt’s users did: according to one expert called, approximately 90 percent of all files linked to on the site, and 94 percent of all files downloaded, were found to be “copyrighted or highly likely copyrighted.” While the defendants attempted to dismiss the statistical sampling used, the court pointed to similar sampling used in other cases, including MGM Studios v. Grokster and A & M Records v. Napster. Furthermore, Judge Stephen Wilson wrote, “for the purposes of this case, the precise percentage of infringement is irrelevant: the evidence clearly shows that Defendants’ users infringed on a significant scale.”
That might have been excusable if Fung could prove ignorance of the wide-scale infringement occurring on his sites, but the court ruled that there were plenty of reasons to believe that the defendant knew what was happening on isoHunt and other sites he operated. “Generally, inducement requires that the defendant has undertaken purposeful acts aimed at assisting and encouraging others to infringe copyright,” Wilson wrote in the judgment.
Fung did just that, creating features — like listings of ‘Box Office Movies’ and the week’s highest-grossing films — that highlighted copyrighted material users would be interested in. Fung also created pages that designated the most commonly searched-for titles, which almost exclusively listed copyrighted works.
Furthermore, the court found that Fung and his moderators “provided users with assistance on a number of occasions regarding how they could go about playing or extracting the copyrighted films that they downloaded from the Defendants’ websites.” That included personal messages in the isoHunt forums that explained how to rip DVDs, as well as which file-sharing applications to use to download movies from the site.
But the most damning bit of evidence is Fung’s admittance that he himself used isoHunt to download copyrighted material. “Even if those downloads were done abroad and were not actionable under United States copyright law… Fung’s actions show that Fung was aware that infringing material was available on the Defendant websites,” the judge wrote.
The court also ruled that, by being found guilty of inducement, Fung didn’t qualify for protection under the DMCA’s safe harbor provision. “In order to obtain safe harbor, a defendant cannot have knowledge of ongoing infringing activities,” Wilson wrote.