Today, the U.S. 9th Circuit Court of Appeals issued a decision in the case that pitted the most powerful studios in Hollywood against the fourth largest BitTorrent site on the web — and the court handed a big victory to the studios.
Columbia, Disney, Paramount, TriStar, Twentieth Century Fox, Universal Studios, and Warner Brothers teamed up to bring the suit against Gary Fung, founder of isoHunt.com, Torrentbox.com and Podtropolis.com.
The court found Fung “induced third parties to download infringing copies of the studios’ copyrighted works.” (“Induced,” in this sense, doesn’t mean that Fung forced users to download illegal material at gunpoint, only that Fung’s websites made it possible.)
Fung and his lawyers argued that they were protected from liability by the safe harbor provisions of the Digital Millennium Copyright Act, but the panel of judges disagreed, finding Fung profited from copyright infringement while maintaining the “right and ability to control” it through his sites.
Fung, reached by email today, rejected that notion. “As a search engine of links, we are not like YouTube or filelockers. We do not have the ‘right and ability to control,’ short of censorship on search keywords, nor the ability to filter as the MPAA or the court suggests, as we don’t touch or host the actual content files.”
He added, “We have every intention to cooperate with copyright holders, which is via notice and takedown of links as per the DMCA.”
The judges wrote in their decision today that isoHunt “goes a step beyond merely collecting and organizing torrent files. Each time a torrent file is added to isoHunt, the website automatically modifies the torrent file by adding additional backup trackers to it.”
The tracking system, the court said, increases the likelihood that a user’s download will be successful. The court cited the number of downloads of Casino Royale to prove its point — 50,000 downloads from Torrentbox.com, but 1.5 million downloads from the Torrentbox.com tracker.
The judgement awarded costs to the studios, but exactly how much Fung will have to pay will be determined by a lower court at a later date, a spokesperson for the MPAA said.
Fung’s lawyer, Ira Rothken, said they would seek rehearing of the matter.
“We searched the opinion and couldn’t even discern which copyrights were at issue in the case and what alleged inducing acts during what unnamed time period caused the unknown works to be infringed,” Rothken said. “This opinion amounts to little more than we think you were bad at some point in time and therefore you lose. The case ought to be heard by a jury.”
The Motion Picture Association of America, however, is wasting no time celebrating the decision. The lobbying group issued a statement hailing the ruling as a victory.
Henry Hoberman, SVP for the MPAA, said the ruling “strikes an important blow in the fight to preserve the jobs of millions of workers in the creative industries, whose hard work and investments are exploited by rogue websites for their own profit.”