BitTorrent file-sharing website isoHunt "induces" copyright infringement

The US Court of Appeal for the 9th Circuit (California) unanimously ruled yesterday that Gary Fung, the Canadian owner of BitTorrent website isoHunt, had "induced" users to download and distribute films and TV programmes, and that he could not rely on the DMCA safe harbor provisions for protection.

Various film studios alleged that isohunt.com and related websites, all run by Fung, induced third parties to download infringing copies of the studios' works. The websites were all BitTorrent sites which enabled file sharing and IsoHunt, Fung's "flagship" site, went a step further by modifying torrent files to make them more reliable than when they were uploaded to the site. IsoHunt also hosted a forum where users could post comments; Fung would post comments and also moderated the forum.

The Court of Appeal affirmed the District Court's decision on liability, confirming that Fung had induced users to illegally download and distribute content and that the safe harbor provisions set out in the DCMA offered no protection.

Two types of supporting evidence corroborated the conclusion that Fung "acted with a purpose to cause copyright violations": first, Fung took no steps "to develop filtering tools or other mechanisms to diminish the infringing activity" by those using his services. Second, Fung generated revenue almost exclusively by selling advertising space on his websites.

As regards whether Fung could make use of the safe harbor provisions, the Ninth Circuit was clear that it would be difficult for any defendant who induces copyright infringement to rely on safe harbor. It went on to say that Fung was ineligible because:

1. He had "red flag knowledge" of the infringement. Red flag knowledge turns on whether a website provider is subjectively aware of facts that would have made the infringement "objectively" obvious to a reasonable person  The court found that films and TV shows were "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."

2. Fung profited from the infringement through advertising while having the "right and ability to control" infringing activity occurring through the various websites.

The case will now go back to the District Court for a decision on damages and to finalise the injunction.

The decision is not surprising. Henry Hoberman, Senior Executive Vice President and Global General Counsel for the Motion Picture Association of America (MPAA) has said:
"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."

However, according to Advanced Television, despite the injunction, isoHunt.com will continue to operate through private servers in Canada and it is the fourth most popular BitTorrent site on the Internet.

The decision is available here.

It's just a game of keepy uppy

The music, film and television industries’ recent successes in fighting illegal file sharing by promoting both legislative change and winning court decisions such as Newzbin2 and the recent Dutch Courts decision to block access to The Pirate Bay are all well and good for content owners, but in the fast moving world of the internet things don’t stay still for long and news now reaches the 1709 Blog that The Pirate Bay will start linking by default to 'magnet' rather than BiTorrent downloads in what can only be seen of as a move to avoid user and file detection. Whilst BitTorrent links will still be available (being the currently preferred option for downloaders, both legal and illegal), they will be a secondary option for the time being. The magnet system makes user and file identification even harder and it is expected that The Pirate Bay will now phase out traditional BitTorrent file-sharing (although comments on their Blog suggest this may not be that easy).

And controversial US streaming platform Grooveshark, no stranger to the 1709 Blog and currently facing legal actions from all four major record labels, has just launched a new HTML5 app making it easier for music fans to access the service on their smartphones. Grooveshark had already launched apps for both the iPhone and Android-powered devices, but Apple and Google banned them from their respective stores. The new app seems a clever way to keep fans using the service.

http://thepiratebay.org/blog and http://venturebeat.com/2012/01/13/grooveshark-html5-mobile-app/

The world record for keepy uppy (uppie) is held by Dan Magness of England, a 25 year old professional freestyler, who kept a regulation football aloft for 26 hours using just his feet, legs, shoulders and head; he completed the feat - which took place in Hong Kong, in June 2010.

As "digital theft" grows, can the content empire strike back?

A new survey in the US commissioned by NBC Universal shows that 23.8% of global Internet traffic involves "digital theft," with the BitTorrent file-sharing protocol accounting for 11.4% of this figure. Brand and trademark monitoring firm Envisional's analysis of the top 10,000 peer-to-peer swarms found that 99.24% of non-pornographic material being traded was copyrighted material. It also found that "infringing cyberlocker sites" accounted for 5.1% of global Internet traffic, while "infringing video streaming sites" made up 1.4% of global traffic.

With that statistic in mind, it still seems surprising to this writer that nearly 100,000 North Americans have been sued for suspected copyright infringement on file-sharing networks over the past twelve months according to details of a study published by TorrentFreak. Again, the majority are alleged to have utilised BitTorrent, although some users of eDonkey were also targeted. The 99,924 defendants were sued as part of a total of just 80 lawsuits, which seek the identities of the many "John Doe" defendants from their various Internet service providers. Some 70,914 case are active and the porn industry is now having to take steps to protect its hitherto much admired internet economic model - nearly all of the recently-filed cases target alleged downloaders of adult content although the mainstream movie industry is actively represented too, against users who have illegally downloaded feature films such as "The Hurt Locker"

Torrentfreak say “through these mass lawsuits the copyright holders are trying to obtain the personal details of (mostly) BitTorrent users who allegedly shared their material online. Once this information is handed over, they then offer the defendant the opportunity to settle the case for a few hundred up to a couple of thousand dollars, thereby avoiding a full trial and potentially even bigger financial penalties”. I find myself reminded of comments from my blog on ACS:law last week (25th January) when Torrentfreak comments “One of the main points of critique is that the copyright holders have no intention of going to a full trial against each of the defendants. They are out to get a settlement, which means that the (possibly weak) evidence will never be tested in court. Two weeks ago the EFF filed an amicus brief in which it asked an Illinois judge to quash subpoenas issued in pay-up-or-else lawsuits involving alleged illegal file-sharing of pornography, with EFF Intellectual Property Director Corynne McSherry saying “Copyright owners have a right to protect their works, but they can’t use shoddy and unfair tactics to do so,” adding “We’re asking the court to protect the rights of each and every defendant, instead of allowing these copyright trolls to game the system.”

It also appears that Google has responded pressure from the entertainment industries by implementing active censors for “piracy related” terms including BitTorrent, torrent, utorrent, RapidShare and Megaupload from its instant and autocomplete services. BitTorrent Inc., RapidShare and Vodo have all spoken out against “commercial censorship”. Among the list of forbidden keywords are “uTorrent” and “BitTorrent” and these keywords will no longer be suggested by Google when the first letter is entered, nor will they show up in Google Instant and all combinations of the word “torrent”

http://torrentfreak.com/100000-p2p-users-sued-in-us-mass-lawsuits-110130/


http://torrentfreak.com/google-starts-censoring-bittorrent-rapidshare-and-more-110126/

Ahoy there - more tales from the Pirate Bay

Well well well, Not just one Pirate Bay story today but four. What’s in the news – well, first and foremost The Pirate Bay website did momentarily go off line on 25 August, no doubt to gasps of relief from the music and film industries, but perhaps unsurprisingly (and as promised by the owners) the BitTorrent site was back online this morning. The removal of the service was the result of a decision of the Swedish district court, which ordered Black Internet to stop servicing The Pirate Bay – the court order was complied with in the face of a 500,000 Kroner fine - but the victory was short-lived and within twenty four hours it seems to be “service as normal”, although not through Blacks.

Secondly, the hunt for money goes on. As readers are probably aware, the four Pirate Bay founders, Peter Sunde Kolmisoppi, Fredrik Neij, Gottfried Svartholm Warg, and Carl Lundstrom, lost a major Swedish court case in April (reported on this blog) when they were found guilty of copyright violations and were fined and face jail sentences. In a second story from Sweden it appears that Sweden's government-run debt-collection agency, commonly referred to as the bailiff, said it could find no attachable assets belonging to three of the four founders of the site (Neij, Warg, and Lundstrom). The claimants in the case, a group of content and media owners, had asked the bailiff to collect the $4 million a court had awarded them after finding the four Pirate Bay founders guilty of copyright violations. But so far no damages and no jail as the four defendants are appealing the one year jail sentences handed down at the trial.

Elsewhere in pirate news, there is ongoing uncertainty around the E5.8 million ($8 million) sale of the Pirate Bay to Global Gaming Factory, something I find hard to imagine happening - particularly when the original Napster sale resulted in multi million pound settlements subsequent to its relaunch as a ‘legal’ site. Trading in GGF shares on the Swedish stock market were suspended and reports said that the company's chairman Magnus Bergman has resigned. However, the company's CEO Hans Pandeya maintained that the suspension was not a problem saying

"The Aktietorget [the Swedish stock market] said they wanted more information on
investors, which we said we would release after the acquisition. There are risks
and possible lawsuits, and this makes people nervous. None [of the investors]
wants to give out their details, otherwise the media will attack them. You are
not supposed to buy an illegal site. This is out-of-the-box thinking. Because it
is unconventional it is viewed with uncertainty by Swedish culture, even if I
don't view it that way. Because of that, [the bankers investigating the sale]
want details and 100% assurances, but in business that is not always something
you can get",

adding he couldn’t comment on Bergman’s departure but that the Chairman was expected to have stepped down in the near future in all events. Well if the sale does go through I imagine the content industry hope that there will be at least $8 million in ‘assets’ for the bailiff to chase …

Finally to the Irish Republic: at the end of last month, the High Court ordered ISP Eircom to block access to The Pirate Bay – good news for content owners you might think … well maybe. The Major labels had clearly been hoping that in light of the court’s decision other broadband providers would follow suit and that the major ISPs, notably UPC and BT Ireland, would volunteer for a similar block. But UPC Ireland says it has refused and now the labels are seeking an interim injunction forcing it to block access to the Pirate Bay. UPC ran the fairly predictable response saying

“we cannot and will not meet demands from private parties that we restrict access to certain content of the internet. To agree to such a move would be to change the nature of an ISP from a communications provider to being a gatekeeper that censors the material its users can access. We believe that censorship such as this should not be agreed upon by private parties but that it is a matter for the courts and other state bodies.”

The Swedish Pirate Party polled 7.1% of the vote in the recent European elections.