The US Court of Appeals for the Ninth Circuit has issued a unanimous decision against the website isoHunt for “inducing” users to illegally download and distribute copyrighted material such as movies and TV programmes. Ruling in Columbia Pictures Industries v. Fung, the Ninth Circuit affirmed the district court’s 2009 ruling that Gary Fung and his business, isoHunt Web Technologies, committed copyright infringement by “inducing” untold numbers of users to illegally download and distribute the MPAA members’ motion pictures and television shows over the BitTorrent peer-to-peer network. Further, the important appellate court held that isoHunt and Fung were not protected by the “safe harbour” provisions of the Digital Millennium Copyright Act. The Ninth Circuit’s opinion held that Fung and his company committed inducement by, among other things, taking “no steps to develop filtering tools or other mechanisms to diminish the infringing activity by those using his services” and running advertisements on a site whose object is to promote copyright infringement.
It held that Fung and his company are ineligible for the safe harbours for at least two reasons. First, they had “red flag knowledge” of the infringement via his site: “The material in question,” the MPAA members’ movies and TV shows, “was sufficiently current and well-known that it would have been objectively obvious to a reasonable person that the material solicited and assisted was both copyrighted and not licensed to random members of the public, and that the induced use was therefore infringing.” And second, Fung and his company were ineligible for the safe harbours because they profited from the infringement through advertising while having the “right and ability to control” infringing activity occurring through their site.
In 2006, the MPAA’s member studios sued Fung and his business, isoHunt Technologies, in federal court in New York, and the case was later transferred to Los Angeles. In 2009, Judge Steven Wilson of the Central District of California granted summary judgement in favour of the plaintiffs, and the following year issued an injunction permanently prohibiting Fung from hosting, indexing, linking to, or otherwise providing access to MPAA member company copyrighted works then in existence or created in the future. The current ruling by the Ninth Circuit affirmed Judge Wilson’s ruling holding Fung and his company liable for copyright infringement. Once the appeal is finalised, the case will return to Judge Wilson, who is expected to make minor modifications to the injunction as directed by the Ninth Circuit, and then hold a trial to determine the amount of monetary damages Fung must pay to the plaintiffs.