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isoHunt loses copyright appeal

US content owners’ battle against online piracy has received a significant boost with the US Court of Appeals for the Ninth Circuit issuing a unanimous decision against the website isoHunt for “inducing” users to download and distribute copyrighted material such as movies and TV programmes illegally.

“Today’s ruling represents an important step toward realising the enormous potential of the Internet as a platform for legitimate commerce and job creation – including millions of workers in the creative industries,” said Henry Hoberman, Senior Executive Vice President and Global General Counsel for the Motion Picture Association of America (MPAA). “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. It also 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.”

The ruling in Columbia Pictures Industries, Inc. 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 download and distribute illegally 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 harbor’ provisions of the Digital Millennium Copyright Act.

“Consumers today have more options than ever before to legally access movies and TV shows on the Internet – from Hulu to HBO Go to Vudu to Crackle to UltraViolet, Epix, MUBI, Netflix, Amazon, and literally hundreds of others,” Hoberman said. “Clearing the field of illegal services like isoHunt will help ensure that these legitimate services can grow and thrive, and that consumers have even more movies and TV shows to watch in ever more ways.”

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.

On the DMCA, the Ninth Circuit first made clear that it will be exceedingly difficult for any defendant who induces copyright infringement to fit within the safe harbors. It then held that Fung and his company are ineligible for the safe harbors for at least two reasons.

Firstly, they had “red flag knowledge” of the infringement occurring 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.”

Secondly, Fung and his company were ineligible for the safe harbors 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 Web 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.

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.

Despite the injunction, isoHunt.com continues to operate through private servers in Canada and it is the fourth most popular BitTorrent site on the Internet. The website claims to offer approximately 59 million peers, 11.8 million active torrents, and is currently ranked as the 231 most visited website on the Internet by Alexa.com.

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