federal appeals court ruled Thursday that the popular BitTorrent file-sharing service isoHunt and its related websites violate U.S. copyright law and are on the hook for hefty monetary damages.
The decision (.pdf) by a three-judge panel of the 9th U.S. Circuit Court of Appeals, hailed by the Motion Picture Association of America, marks the first time a federal appeals court has ruled against a BitTorrent search engine. IsoHunt, TorrenTBox and Podtropolis unlawfully pointed the way to free movies, music, videogames and software that were copyrighted and not authorized for the sites’ operator — Gary Fung — to help distribute, the court said.
Programmer Bram Cohen released the BitTorrent file-sharing protocol in 2001, and its efficient way of transferring files has become the method of choice for illicit, peer-to-peer sharing of copyright-protected content that sites like Canada’s isoHunt and Europe’s The Pirate Bay have capitalized upon.
“This ruling affirms a core principle of copyright law: Those who build businesses around encouraging, enabling and helping others to commit copyright infringement are themselves infringers, and will be held accountable for their illegal actions,” said Henry Hoberman, a vice president for the MPAA, which initially sued Fung in 2009.
The opinion comes the same day Hollywood studios announced record-setting global box office sales of $34.7 billion, a 6 percent increase over the prior year.
A three-judge panel of the San Francisco-based appeals court ruled that, unlike the search engine Google, Fung does not deserve protection under U.S. copyright laws for hosting links to pirated content. That’s because Fung’s business model, the court said, was designed for the primary purpose of copyright infringement, with the majority of links on his search engines pointing to unauthorized, copyright-protected content.
Fung claimed it was not he, but his millions of users, who fed his sites with links and were redistributing them without authorization from the rights holders. Fung asserted that he was merely a search engine, like Google, that was protected by the Digital Millennium Copyright Act’s so-called safe-harbor provision that permits internet companies to escape liability for illegal content posted by their users if it is promptly removed at the request of the rights holder. Fung claimed he removed files upon request.
The appeals court did not see it his way, ruling the safe harbor under the DMCA does not exist for sites that “induce” unlawful file sharing. The court noted that isoHunt had prominently featured a list of “Box Office Movies” of the 20 highest-grossing movies in U.S. theaters, and also hosted links to where the movies were being seeded by BitTorrent users. Once somebody begins downloading the link, they also begin seeding the file to others in what is known as a “swarm.”
The court said that Fung also posted messages on the site asking users to upload torrents of copyright-protected films, and he urged file-sharers to download files when visiting his site — which profits via advertising:
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.
The attorney for Fung, of Canada, said the decision was a blow for internet freedom.
“We disagree with the court’s ruling. We find the standard they pronounce for inducement is ambiguous,” attorney Ira Rothken said in a telephone interview. “An ambiguous copyright standard will chill innovation.”
Unauthorized content can still be acquired via Fung’s websites, despite a lower court judge having ordered Fung to filter out copyrighted content via keywords.
Fung is likely to face harsh monetary damages when the case returns to Los Angeles federal court, where Fung was initially found liable in 2009. The U.S. Copyright Act allows damages of up to $150,000 per infringement.
His attorney, however, said Fung might file for bankruptcy if push comes to shove.
But before it gets that far, Rothken said he will urge the appeals court to rehear the case with 11 judges.
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