IsoHunt Still Guilty Of Contributory Infringement
from the chipping-away-at-safe-harbors dept
The 9th Circuit has finally ruled in the appeal of the IsoHunt case, and has found, once again, that Gary Fung is guilty of contributory copyright infringement, as per the Supreme Court's ruling in the Grokster case. They basically agree with the district court ruling, which found that IsoHunt hit on all of the factors that were present to create "inducement" (a theory of copyright that Congress had previously rejected, but which the Supreme Court decided to make exist in the Grokster case). That is, the court agreed that there was distribution of a "device or product", including acts of infringement, and (most importantly) that IsoHunt itself was promoting the product's use to infringe on copyrights. However, on the (slightly) good side of things, the court rejected the district court's broad injunction against IsoHunt as going overboard.The court goes through the "Grokster" inducement factors, but the results are bit troubling. The first factor is the distribution of a device or product for infringement. Here, IsoHunt argued that it was just providing a service for searching and finding stuff, but wasn't actually distributing any file sharing software "product" or "device." The court doesn't buy it, but I find its argument troubling.
Unlike patents, copyrights protect expression, not products or devices. Inducement liability is not limited, either logically or as articulated in Grokster III, to those who distribute a “device.” 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.That's problematic on multiple levels. First, it's clearly expanding the Supreme Courts limitations in Grokster, by arguing that effectively the requirement for distributing a product or service used to infringe is no longer a requirement at all! In other words, they basically argue that the first factor doesn't matter. Furthermore, the example they use doesn't make much sense either. The "retail copying service" they describe doesn't need inducement theory to be found guilty, as they appear to be violating the reproduction right directly.
The second factor is not difficult to prove. It's obvious that some people used IsoHunt to infringe. There's no real argument there. The third element gets a little trickier. It's the question of how much did IsoHunt promote "its use to infringe." The appeals court, like the district court, uses the fact that IsoHunt had a listing of "box office movies" as proof of promoting infringing uses, along with some of IsoHunt operator Gary Fung's own actions:
For a time, for example, isoHunt prominently featured a list of “Box Office Movies,” containing the 20 highest-grossing movies then playing in U.S. theaters. When a user clicked on a listed title, she would be invited to “upload [a] torrent” file for that movie. In other words, she would be asked to upload a file that, once downloaded by other users, would lead directly to their obtaining infringing content. Fung also posted numerous messages to the isoHunt forum requesting that users upload torrents for specific copyrighted films; in other posts, he provided links to torrent files for copyrighted movies, urging users to download themWhile you can see why this might be seen as promoting the use to infringe, there's a leap here: which is that it assumes that any and all box office movies couldn't possibly also have torrents. That's not definitively the case. It is entirely possible that a movie could put up a legitimate torrent -- which the court doesn't even consider as a possibility. They also point out that Fung did not develop a filter and made money from advertising. I can't see how either is relevant, as there is no requirement for a filter, nor is it illegal to make money from advertising.
The most troubling part of the ruling, however, is in the way the court looks at the "causation" question. Here are the different views presented:
Fung and amicus curiae Google argue that the acts of infringement must be caused by the manifestations of the distributor’s improper object—that is, by the inducing messages themselves. Columbia, on the other hand, maintains that it need only prove that the “acts of infringement by third parties” were caused by the product distributed or services provided.The court sides with Columbia on this one, but that basically seems to completely wipe out the fourth factor as well. Because they more or less argue if you can show both infringement (third factor) and the product (first factor) you've automatically got the fourth factor proven as well. So why do we even have that fourth factor?
The court claims that it recognizes this could go too far, but then tries to "strike a balance."
We are mindful, however, of the potential severity of a loose causation theory for inducement liability. Under this theory of liability, the only causation requirement is that the product or service at issue was used to infringe the plaintiff’s copyrights. The possible reach of liability is enormous, particularly in the digital age.So... how does it deal with this? It... basically punts. It goes into a long discussion, highlighting how it's true that IsoHunt and Fung may have a reasonable argument that the infringements that happened were not caused by IsoHunt at all. For example:
Fung argues, on this basis, that some of the acts of infringement by third parties relied upon by the district court may not have involved his websites at all. He points out, for example, that by far the largest number of torrents tracked by the Torrentbox tracker are obtained from somewhere other than Torrentbox.com. If a user obtained a torrent from a source other than his websites, Fung maintains, he cannot be held liable for the infringement that resulted.The court just punts the issue back to the district court:
We do not decide the degree to which Fung can be held liable for having caused infringements by users of his sites or trackers. The only issue presently before us is the permanent injunction, which, as in Grokster III, does not in this case depend on the “exact calculation of infringing use[] as a basis for a claim of damages.” 545 U.S. at 941. We therefore need not further entertain Fung’s causation arguments at this time, but leave it to the district court to consider them, in light of the observations we have made, when it calculates damages.Separately, in discussing the DMCA safe harbors, the ruling does push back on the lower court's rulings, saying that its reasoning for rejecting safe harbors was not accurate. The lower court said that IsoHunt could not get a DMCA 512(a) safe harbor because that only applied to "transitory" networks, and since the content never actually touched IsoHunt, it didn't apply. The appeals court rejects this, however.
The district court should not have rejected this safe harbor on the ground it did. Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007), held that the § 512(a) safe harbor does not require that the service provider transmit or route infringing material, explaining that “[t]here is no requirement in the statute that the communications must themselves be infringing, and we see no reason to import such a requirement.” Id. at 1116; see also id. (“Service providers are immune for transmitting all digital online communications, not just those that directly infringe.”).However, they still reject safe harbors for IsoHunt because of other activity by Fung, namely using trackers to generate info that is used to "induce further infringing use of his websites and trackers." Basically, the court says that Fung's website may be protected, but his trackers are not protected as service providers.
There are two other troubling parts of the ruling. The first concerns "red flag knowledge." This is the issue that is key to the YouTube/Viacom case. There's a problem with the DMCA, in that it first notes that takedowns only need to occur with a valid DMCA notice. That suggests that an invalid DMCA notice should not necessarily lead to a takedown. But, it also has a section saying that you can be liable if there's "red flag knowledge." But if you need a valid DMCA notice, would an invalid one count as red flag knowledge? The whole thing gets tricky fast. Most courts tend to avoid this by repeatedly saying that there is no red flag knowledge without specific knowledge of infringing files (usually in the form of takedown notices). The Fung case is really the only major case where red flag knowledge was considered reasonable. And the court just rubber stamps that decision with little discussion. It just says because Fung encouraged people to upload and download copyrighted works, that proves he had red flag knowledge. Again, this seems to assume that he must have known it was infringing.
The other troubling part is that the court argues that having advertising on the site constitutes direct financial benefit from the infringement. Other courts have noted that just having advertising on a site where infringement occurs does not mean that the financial benefit is directly attributable to the infringement, but the court here walks that back somewhat:
Under these circumstances, we hold the connection between the infringing activity and Fung’s income stream derived from advertising is sufficiently direct to meet the direct “financial benefit” prong of § 512(c)(1)(B). Fung promoted advertising by pointing to infringing activity; obtained advertising revenue that depended on the number of visitors to his sites; attracted primarily visitors who were seeking to engage in infringing activity, as that is mostly what occurred on his sites; and encouraged that infringing activity. Given this confluence of circumstances, Fung’s revenue stream was tied directly to the infringing activity involving his websites, both as to his ability to attract advertisers and as to the amount of revenue he received.This is very worrisome, because contrary to what the court suggests here, the revenue stream is not tied to infringement, but tied to providing a popular service that people want. That is the success of the revenue stream does not increase or decrease with each infringement, but with each use of the overall service -- some of which is infringing, some of which is not. Fung doesn't make any more money if the ad is viewed by an infringing user vs. a non-infringing user. It would seem that this should be a prerequisite for requiring that there be a financial benefit from the infringement. Unfortunately, the court seems to lump this all together as "well there are ads and infringement and more infringement means more ads, so there's a direct financial relationship." But, under that theory, then pretty much any website that has any infringement could run afoul of that, and that's clearly not what the DMCA's safe harbors were supposed to be about.
Finally, one bit of good news in the ruling is that the court does rule that the injunction is against IsoHunt is too broad. This had been a major concern since the original court ordered a blockade that also blocked legitimate, authorized content. The court recognized this as a problem, noting that the injunction included all sorts of vague language that impose too much of an expectation that Fung can wave some sort of magic wand to block any and all "infringement-related terms in metadata for any webpages." The court agrees that this is too much:
Beyond the specifically-named examples, no one reading this injunction can tell what it means for a term to be “widely known to be associated with copyright infringement.” We understand the desire to build flexibility into the injunction. But Rule 65(d), overall, prefers certainty to flexibility. Subsection (ii) of the injunction’s definition of “Infringement-Related Terms” therefore must be modified to state simply that the phrase includes specifically named terms.It also finds that some parts of the injunction are clearly too burdensome for Fung himself:
Fung maintains, and we agree, that certain provisions of the injunction could be interpreted to prevent Fung from ever working for any technology company whose services others might use to infringe copyright, even if those other companies are not themselves liable for primary or secondary copyright infringement.... We agree that insofar as the injunction can be interpreted to prohibit Fung from seeking legitimate employment, it is more burdensome than necessary to provide Plaintiffs relief.On the whole, Fung still has lost big time with this ruling, and I'm still quite concerned about many parts of it. In a few areas the court has cut back on some excesses by the district court but, of course, this case is far from over.
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Filed Under: contributory infringement, copyright, gary fung, inducement, injunction, liability, red flag
Companies: isohunt
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...when you support piracy as much as Mike Masnick does.
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MOST people used it to infringe, you intellectually dishonest sleazeball.
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"Fung�s revenue stream was tied directly to the infringing activity involving his websites, both as to his ability to attract advertisers and as to the amount of revenue he received."
Seems the court doesn't care if pirate site "display ads pay next to nothing"
See this is a for profit business ripping off artists, pocketing the ad revenue and paying artists nothing.
It's really pretty simple.
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"Fung�s revenue stream was tied directly to the infringing activity involving his websites, both as to his ability to attract advertisers and as to the amount of revenue he received."
Seems the court doesn't care if pirate site "display ads pay next to nothing"
See this is a for profit business ripping off artists, pocketing the ad revenue and paying artists nothing.
It's really pretty simple.
Great stuff. The opinion is the gift that keeps on giving. No wonder Mike was so "troubled" by it that he felt the need to write such a lengthy post in response. It's got everything: indirect liability, red flag knowledge, ad supported piracy, etc. Mike probably won't be able to sleep tonight just thinking about it. I'll sleep like a baby.
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How often does the owner of a current "box office" hit movie release a torrent of it?
You're a sociopath, Masnick.
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This isn't surprising. Adults have looked at the law and the facts.
And heck, I even agree with lifting the onerous terms.
But now, to ape the fanboys: where are their wails so that I can enjoy? -- "Oh, noes! Courtz sez sharin no legilz!"
Take a loopy tour of Techdirt.com! You always end up same place!
http://techdirt.com/
Pirate's checklist:
x Hide Identity (x VPN x Proxy x TOR)
x Excuses (x Didn't know x Wasn't me x IP isn't ID x Just Sharing)
08:39:12[j-522-3]
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Re: This isn't surprising. Adults have looked at the law and the facts.
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Re: This isn't surprising. Adults have looked at the law and the facts.
I bet your lips are raw.
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Wow-- what a loony apology for IsoHunt
They were selling a service and that service was finding copyrighted material. That was why people came through the door and that's what kept them coming back.
It's rather fascinating to watch the completely tone-deaf nerds around here continue with their hair-splitting and loophole searching. The rest of the world doesn't work this way because Justice and the Courts can never devote the time to these arguments.
The guy was, for almost all intents and purposes, running a service where he helped people find illegally duplicated movies and songs. Period. That hurt hard working people in Hollywood. Period. IsoHunt is thus guilty. Period.
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Re: Wow-- what a loony apology for IsoHunt
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Interesting that.
Here boys, have a report each.
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Maybe they were all at the same circle jerk that finished up moments before the article was posted?
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Re: @Atkray: yes, it IS strange that Ninja and Rikuo still haven't posted!
Here's another bit of strange: "full of sour grapes." -- What does that mean? If you're going to use two thousand year old cliches, at least get them right! -- "Sour grapes" is when you want something but can't reach it (as grapes in the fable), so say they're sour and you didn't want any, anyway. -- While HERE, we're completely supported by a real live court handing a huge defeat to Mike's piratey notions, so why would WE be disappointed?
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2nd read: the key point to emphasize is follow the MONEY:
As there's a connection between Kim Dotcom getting millions with the infringed content on his site. If you've any sense, Mike, you'll just let go of that lost cause. Don't need a crystal ball to see where the courts are going, you lawyer groupie.
Now, Little Pirates: IF you'll pull back from the silliness of claiming you're only "sharing", and the laughable "piracy promotes", and worst of all, the "better business model" mantra, then you can still fight BIG MEDIA on Populist grounds.
Take a loopy tour of Techdirt.com! You always end up same place!
http://techdirt.com/
Where Mike's "new business model" (file hosts like Megaupload) is to grift on income streams that should go to content creators -- and then call the creators greedy!
08:56:58[j-137-4]
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Re: 2nd read: the key point to emphasize is follow the MONEY:
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Re: Re: 2nd read: the key point to emphasize is follow the MONEY:
And because simply lying: "you've gone on the record as saying that earning money from any source is obviously evidence of stealing" -- I'll need you to link to such comment.
For the record here: EARNING money by trading with others is FINE, it's being Born Rich and using that as essentially feudal entitlement is what needs to be stopped. You kids are so corrupted by what The Rich have taught you about the source of wealth (which is solely LABOR, not capital) that you're little more than attack dogs against anyone who protests inequality. -- So, ARF!
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Re: Re: Re: 2nd read: the key point to emphasize is follow the MONEY:
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Re: Re: Re: 2nd read: the key point to emphasize is follow the MONEY:
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Wow...
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Re: Wow...
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Days like this are great because Masnick is never able to control himself; he simply has to post some bizarre defense of piracy, no matter how contorted.
It's hilarious.
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Re: Re: Re: Wow...
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No they haven't.
You're about as sharp as a bowling ball, aren't you, pirateboy?
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Re: Re: Re: Re: Re: Wow...
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I'm sorry if I like listening to music on official youtube channels.
I'm sorry if that offends you, but...
If stuff like this happens again, guess what?
Safe Harbors, which, again, are what's needed for the internet, tv, radio and newspapers to NOT get sued into oblivion, will get eroded away.
Seriously, HOW do you think people like Jon Stewart can keep on working if not for Safe Harbors/Fair Use?
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Opponents who posted above. I would like to ask a question:
I am curious because I am a skeptic and advocator of scientific inquiry.
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Re: Opponents who posted above. I would like to ask a question:
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Ooooo, I like this line the best!!
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Wow. Um. No. Not even close. Not all linkers are liable for infringement. You guys think in such extreme, black-and-white terms. It's amazing.
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Re: @"The trolls/idiots are out in force on this one"
YES, YOU ARE! Bunch of one-liners complaining and insinutating with no more basis than proximity of time-stamps. You wouldn't even notice that if the usual fannboy-trolls hadn't been staggered by their loss here.
And none of you trolls have even gone anywhere near the topic.
Take a loopy tour of Techdirt.com! You always end up same place!
http://techdirt.com/
Where vulgar and baseless ad hom is the height of Insider argument.
09:15:28[k-226-1]
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FTFY.
Sorry you and Masnick get so butthurt about that.
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FTFY
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Let's take a look.
That's problematic on multiple levels. First, it's clearly expanding the Supreme Courts limitations in Grokster, by arguing that effectively the requirement for distributing a product or service used to infringe is no longer a requirement at all! In other words, they basically argue that the first factor doesn't matter. Furthermore, the example they use doesn't make much sense either. The "retail copying service" they describe doesn't need inducement theory to be found guilty, as they appear to be violating the reproduction right directly.
The court doesn't say the first factor doesn't matter. They point out in the paragraph that follows the one you quoted that inducement liability in Grokster didn't turn on the presence of a device as the Supreme Court spoke more generally of "a widely shared service or product" that is used to infringe. The court rejected Fung's argument that there had to be a device per se, instead finding that a service fulfills the first factor as well. The analogy to a copy shop was not, as you intimate, incorrect because a copy shop owner would be a direct infringer. The analogy is correctly pointing out that liability can attach whether providing a device or a service.
The second factor is not difficult to prove. It's obvious that some people used IsoHunt to infringe. There's no real argument there.
It's funny, but I actually disagree with you on this one. To prove indirect infringement it is necessary to prove direct infringement. While, no doubt, much infringing material was available on Fung's site, that's not the same thing as proving that anyone infringed. I'm surprised you concede this element. I don't think it's at all obvious that people actually infringed.
The appeals court, like the district court, uses the fact that IsoHunt had a listing of "box office movies" as proof of promoting infringing uses, along with some of IsoHunt operator Gary Fung's own actions: *** While you can see why this might be seen as promoting the use to infringe, there's a leap here: which is that it assumes that any and all box office movies couldn't possibly also have torrents. That's not definitively the case. It is entirely possible that a movie could put up a legitimate torrent -- which the court doesn't even consider as a possibility.
This is an extremely weak argument on your part. Yes, it's possible that a box office movie had a legally available torrent. But was that ACTUALLY the case with any of the movies at issue? Surely Fung would have pointed that out were it so. You seem to think that something being theoretically possible negates the fact that it wasn't actually that way.
They also point out that Fung did not develop a filter and made money from advertising. I can't see how either is relevant, as there is no requirement for a filter, nor is it illegal to make money from advertising.
This one's easy. The court is just applying the logic from Grokster. As the court notes, and as the Court noted in Grokster, the lack of filters and the revenue from ads, while "insufficient in themselves" to prove intent, are nonetheless corroborate a finding of intent. The court is just applying Grokster.
The most troubling part of the ruling, however, is in the way the court looks at the "causation" question. Here are the different views presented: *** The court sides with Columbia on this one, but that basically seems to completely wipe out the fourth factor as well. Because they more or less argue if you can show both infringement (third factor) and the product (first factor) you've automatically got the fourth factor proven as well. So why do we even have that fourth factor?
You're not reading it correctly. The court says, again following Grokster, that it's the intent that matters. Simply showing the distribution of a device or service that is used to infringe is not enough. There must be an unlawful purpose. As the Court said in Grokster, "one who distributes a device with the object of promoting its use to infringe copyrights, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." Fung didn't cause the infringements to occur by merely providing the service, he caused it to occur by intentionally inducing people to use his service to infringe.
The court claims that it recognizes this could go too far, but then tries to "strike a balance." *** So... how does it deal with this? It... basically punts. It goes into a long discussion, highlighting how it's true that IsoHunt and Fung may have a reasonable argument that the infringements that happened were not caused by IsoHunt at all. For example: *** The court just punts the issue back to the district court:
The court there punts on the issue of files obtained from other torrent sites, but it's not punting on the issue of files available from Fung's site. So you are leaving out a critical point when you say that the court leaves open the possibility "that the infringements that happened were not caused by IsoHunt at all." There is no doubt that Fung caused the infringements of files available on his site. The only thing the court left open was the situation where files were available on other sites. I have a pretty good idea how Judge Berzon would rule on that if he had to, but you can bask in the uncertainly all you want. Just don't misrepresent what the court actually said. As the court notes, "the fact that torrent files were obtained from elsewhere may not relieve Fung of liability." It wasn't necessary for the court to make that determination, so it didn't make it. I think you're dreaming though if you think that determination would go Fung's way.
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That means they'd have to globalize the effort because , I can assure you, if a country closes down a portal in 1 country another one will popup at another spot on the globe . And we all know what happened with ACTA ( dead and buried )
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The court mentions three of Fung's sites: isohunt.com, torrentbox.com, and podtropolis.com. The court says that some of the actual files (and not just the .torrent) were available on his sites.
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Actually, no, the court did not say this. They said specifically that the .torrent files were hosted on his site. (It is these files that were uploaded at the discretion of users.) The other two sites were mainly used as trackers. No infringing content was actually hosted on any of the sites.
p.s. The long-winded comment, above, should not have been flagged. I have no objection to flagging the yee-haw'ing "pirate Mike" douchebag slimeballs that vomit on these comments, but that was not one of them.
In truth, I think Mike's concerns are valid, but the actual ruling is not as bad as he believes. On the other hand, I've seen many people take rulings like this, and try to spin them to mean exactly what Mike fears they might mean - most especially MPAA/RIAA wonks.
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It is an unmitigated disaster for anyone facilitating infringement in any form that can be charged in the Ninth Circuit.
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I'm pretty sure anyone facilitating infringement is already in a "disastrous" legal situation, whether in the Ninth Circuit or not.
But the devil is in the details. I don't think anyone is surprised that IsoHunt was found to be secondarily liable, but how it was found liable is more important than the actual finding. Those details make a huge difference in whether the ruling is an "unmitigated disaster" for only people who are facilitating infringement, or an "unmitigated disaster" for everyone else as well.
And there were some pretty ridiculous details in the District Court decision, especially regarding the DMCA safe harbors and the overly broad injunction, which the Ninth luckily corrects. There are still some troubling parts about it, which Mike explains (and I agree they are troubling, though not as troubling as Mike thinks), and others as well (like my previous post about 512(a)).
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Great stuff, Karl. I love it when I'm shown to be wrong. Thank you. You're right. I forgot that we're talking about p2p and torrents, so the .torrent file is what Fung hosted--not the actual infringing files themselves. I misunderstood what Judge Berzon was referring in the opinion as "torrent files." She means .torrent files, not the infringing files the .torrent files point to.
So when she referred to the fact that the torrent file for Casino Royale was downloaded from torrentbox.com 50,000 times, while the torrentbox tracker registered 1.5 million downloads, she was referring to difference between .torrent files downloaded from torrentbox.com itself and .torrent files found using the torrentbox tracker. I was totally misreading that, and again, I thank you for pointing out my error. I love being wrong because it means I learn something new.
Anyway, this is actually much more interesting, and it ties into the discussion we're having in the other thread about liability for linking. Fung was found to be liable for the .torrent files he was providing, and a .torrent file is very much link a hyperlink. The .torrent file, like a link, does not itself contain the infringing file. It's merely a means of telling someone where to find the infringing file. Thus, if Fung is liable for telling someone where to find an infringing file via a .torrent file, it follows that a person would be liable for telling someone where to find an infringing file via a link. Fascinating. Thanks again.
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Not really, no. True, a .torrent file merely contains metadata, and not the actual content. But the content data itself is not available to anyone who does not use that specific .torrent file. A hyperlink, on the other hand, is available to anyone, everywhere, whether they get there through that hyperlink or not.
Perfect 10 v. Google (again) highlighted this distinction. Re-read the section comparing Napster's "proprietary music-file sharing system" and Google. It's in the "vicarious infringement" discussion (p. 39 in my copy).
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Uh, I meant a "web page location," not a hyperlink. Sorry.
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That strikes me as a distinction without a difference. Both tell users where to find the infringing materials. That the materials are otherwise available (link) or not (.torrent) is irrelevant. It's the fact that they tell people where to find the materials that matters, not the fact that people might otherwise have different ways of finding or not finding the materials.
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...as copyright liability depends on one�s purposeful involvement in the process of reproducing copyrighted material, not the precise nature of that involvement.
"purposeful involvement in the process" seems pretty succinct
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It certainly made a difference in the Perfect 10 v. Google case.
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You're going to have to spell that out for me. The Ninth Circuit in Perfect 10 said that Google could be liable for providing links to infringing material if it knew the links pointed to infringing material and failed to remove them. How does the distinction that you're bringing up, namely, that the links aren't the only way to get to the infringing materials, matter?
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This distinction is why there is extreme angst with the usage of the bittorrent protocol in the first place it is purely decentralised and everywhere and nowhere at the same time.
For a court to specifically state it is the same as a link would be to totally create a new and extremely worrying legal fiction that has ramifications above and beyond a courts mandate
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So when she referred to the fact that the torrent file for Casino Royale was downloaded from torrentbox.com 50,000 times, while the torrentbox tracker registered 1.5 million downloads, she was referring to difference between .torrent files downloaded from torrentbox.com itself and .torrent files found using the torrentbox tracker.
The torrentbox tracker does not tell you where to find .torrent files. It is not a search engine.
Instead, it means that the torrent file was downloaded 50,000 times, but the amount of users connected to the swarm for that particular movie, was 1.5 million, whether that swarm connected through those particular torrent files or not.
This is how trackers work. Anyone, at any time, can "announce" to any torrent tracker, simply by entering its URL or IP into the .torrent file. The tracker will track it automatically, without any input (or knowledge) from the owner of the tracker.
That is what Fung was arguing: that he should get immunity for the infringement committed by users who connected to the tracker through .torrent files that were not created by him, nor offered on his website, nor even found through searching on his website.
The fact that he does not, means that anyone running any torrent tracker may be liable if any user uses that tracker for infringing material at all, even without the owner's knowledge or consent.
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Oops. My bad. Judge Berzon is a "she." http://en.wikipedia.org/wiki/Marsha_S._Berzon
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;)
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Wow. It amazes me that you publish this stuff. Much more so that you might actually believe it. The revenue stream is directly tied to the infringement, for it is the infringement that draws the people to the service in the first place. You're trying to argue that people are innocently drawn to the service without acknowledging WHY they're drawn there. If over 90% of the materials available there are infringing, then it's obviously the infringing materials that draw people in. Without the infringing materials, would Fung's site be as popular? Of course not. It's truly bewildering that you deny this since it's so freaking obvious that it hurts.
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He doesn't care anymore. He's been definitively defined, on the web and off, as a piracy apologist. He is doomed to that legacy.
The project worked.
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If by "project," you mean "calculated smear campaign." And if by "worked," you mean "made Mike more influential."
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Glad to clear that up for you. Think about that some as you return to your master for your head pat.
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The opinion states that an expert found that 90-96% of the materials available were infringing. Fung was not able to refute this.
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Tripe.
Both your kind and Mike are disillusioned to the reality around you. This has never been a "war" or "battle" both arguments are invalid. It's quite futile and just as the mighty government (with it's glassy eyed fever of wanton totalitarianism with dark ecstasy driven tripe) is learning, people do what they want, people do what's BEST for them. Bunch of fucking haters, the lot of ya.
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You can almost see
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Ah the joys of children.
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Take a loopy tour of Techdirt.com! You always end up same place!
http://techdirt.com/
Where Mike's "new business model" (file hosts like Megaupload) is to grift on income streams that should go to content creators -- and then call the creators greedy!
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If you don't want to support someone then don't make a comment about them.
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Same design, more truth.
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====
Note that as of Jan. 22, 2007, we have moved servers to Canada and are no longer subject to US DMCA laws. We are keeping this copyright policy and procedure modeled after the DMCA, as it worked for us and for copyright owners in the past, and we find this procedure and takedown process to be mostly fair.
====
- http://isohunt.com/dmca-copyright.php
Most websites state that any disputes must be tried in the region they are located, so I'm wondering why Fung proceeded to fight this down south. Anyone know?
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Most troubling bit
This would mean that no torrent tracker whatsoever is eligible for immunity under the safe harbors. It is a terrible ruling, especially given the text of 512(a)(3):
Put together, it seems very clear that the "points" do not have to be specified by the user, but rather, only the request does.
In fact, it seems like that would knock out protection for nearly everyone. After all, when going to a webpage or sending email, the user doesn't specify the "points" of that webpage or email recipient. That information is often routed through numerous nodes between the web/email server (often more than one per site) and end user, often changing multiple times per day, and known to no one but the ISP. By this standard, providers like Comcast, Verizon, and so forth, wouldn't have DMCA safe harbors either. That's hugely problematic, and hopefully it gets overturned. Otherwise, you can be certain that "Big Content" will come after them with lawsuits (since they have deep pockets).
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Wouldn't there have to be evidence of deliberate wrong-doing by Comcast or Verizon as well? That's like suggesting that Fedex could be charged with drug trafficking because of a package of marijuana in their system absent any evidence of knowledge or complicity.
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Right. Karl is missing that Fung was not a mere passive conduit, just following instructions given to it by a user. Comcast and Verizon can moor in the 512(a) safe harbor because they just dumbly route information. Fung can't get the safe harbor because he played a role in telling people where to find the infringing stuff.
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Karl's not missing it. Karl deliberately omits it because it blows up the featured float in his absurd parade of horribles.
It's almost sad how desperate the apologists have become. Yesterday, it was a felony conviction for the Army wife who had a song playing in the background during a Skype call to her deployed husband. Before that it was breaking the Internet and imprisoning Justin Bieber. Today it's this garbage about ISP's losing safe harbor protection under this decision. It's simply laughable the lengths these morally-bankrupt freeloaders will go to preserve their ability to get something for nothing.
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To be clear: That is not what the court said.
The court accepts Fung's argument that he played no role in the tracker "telling people where to find the infringing stuff." They then said it didn't matter.
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Fung asserts that these functions are "automatic technical processes" that proceed "without selection of any material by us." Even so, for the tracker to be a "service provider" for purposes of the 512(a) safe harbor, the tracker, whether its functions are automatic or not, must meet the special definition of "service provider" applicable to this "conduit" safe harbor. If those functions go beyond those covered by that definition, then it does not matter whether they are automatic or humanly controlled.
The court accepts Fung's argument that he played no role in the tracker "telling people where to find the infringing stuff." They then said it didn't matter.
I think you're simply misreading that. 512(a) only applies to conduits, i.e., dumb pipes. Fung's tracker selects where the user's client will connect. The user does not select these points, Fung does. Hence, Fung is not a passive conduit at can't claim safe harbor under 512(a). Read the two paragraphs before the one you cited. Fung isn't dumbly routing traffic. He's actively routing traffic for "dumb" users who don't know where to go.
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It is, unfortunately, not the AC's interpretation, but the court's.
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Fung does not select the "points." The tracker does. The court is very clear that it is not Fung's behavior which makes a tracker ineligible for safe harbor immunity. They clearly state that it is because of the technical nature of how torrent distribution works in general.
Fung's trackers - like all torrent trackers - were completely automated. The "points" were not selected by Fung, but by a purely mechanical interaction between the tracker and the users' BitTorrent clients. If this doesn't qualify as a "dumb pipe," then no type of distributed network possibly could.
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No. The judge did not consider Fung's conduct in this particular section of the ruling.
Of course, losing safe harbors does not automatically mean you are infringing. It just means you lose immunity from liability.
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Of course, losing safe harbors does not automatically mean you are infringing. It just means you lose immunity from liability.
Huh? I read the whole section as turning on the fact that Fung's conduct was intimately involved in the routing. Unlike the dumb pipes of Comcast or Verizon that merely follow orders from users, Fung was giving orders to users as to where to find the infringing materials. I think you're misreading the 512(a) analysis.
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I have no idea how you read it that way. The court accepted that Fung, personally, had no involvement in the routing done by the tracking software. It didn't matter that it was completely automated; it only mattered that the software decided which other "point" in the swarm to connect to. Even though the software only did so at the request of the users, it didn't matter.
That's a huge problem, because a) it's how torrents work, and how a torrent tracker has to work; and b) torrents aren't the only type of network that uses this form of distributed connectivity.
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There, Judge Berzon is only discussing the safe harbor under 512(a). She is correctly noting that this particular safe harbor only applies to service providers who route transmissions "between or among points specified by a user." In other words, the service provider must be a mere conduit who is just following the user's orders. The problem for Fung was that he was more than a passive conduit. His trackers generated the very information that was used to tell users where to find the infringing materials. Rather than the user requesting his service route transmissions based on the user's directions, users relied on his service to identify the location of the infringing materials and the corresponding routing information for them. It's the difference between a user asking Fung to connect them to a specified place to get file X and a user asking Fung where they should go to find file X. 512(a) only gives a safe harbor to the former, not the latter.
In fact, it seems like that would knock out protection for nearly everyone. After all, when going to a webpage or sending email, the user doesn't specify the "points" of that webpage or email recipient.
Sure they do. They say "send this email to address X" or "take me to webpage with address Y." The service provider has a safe harbor because it's just routing the transmission. Fung, on the other hand, wasn't merely routing a transmission. He was telling people where to find infringing files that they didn't otherwise know how to locate.
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But under her ruling, the user must explicitly specify which "points" are being used. If the user does not know that, then no safe harbor, even if the "points" are automatically generated by a routing process.
His trackers generated the very information that was used to tell users where to find the infringing materials.
Technically, each tracker didn't "generate" the information, but collect it. It automatically polled other BitTorrent clients who were also connected to that tracker via that torrent file, and routed the results back to the requesting BitTorrent client.
In other words, it selected the recipients of the material as an automatic response to the request of the user.
This is exactly what all torrent trackers do (with all files, not just infringing materials). Again, it would mean that no torrent tracker gets safe harbors.
And this particular interpretation seems to contradict the specific wording of the statutes. A torrent tracker actually satisfies all the subsections of 512(a): the transmission was initiated by the user; the "provision of connections" and "selection of material" was made by the user; "the recipients of the material" are selected as "an automatic response to the request" of the user; "no copy of the material" that is accessible to anyone else, is maintained by the tracker; and the tracker does not modify the content of the transmissions.
Which is why I think this part of the ruling won't last very long. At least, I hope not.
Sure they do. They say "send this email to address X" or "take me to webpage with address Y."
But that email address, or that webpage, is not at any "point" (in the court's words) that the user actually knows about. I have no idea whatsoever which physical computer is hosting the Techdirt site (and it's likely more than one); that "point" is "generated" by their ISP. That's the problem.
Another example: I use Dropbox to back up my files (mainly my schoolwork). I don't even go to their website; I simply make an automated request (via the sync software on my desktop) for a specific file to download. Do I know at what "point" my files are located? No idea. I expect that, like many file hosting sites, they dynamically balance loads between different machines, and route between those "points" as necessary.
So, under this court's ruling, Dropbox would not get 512(a) safe harbor protections, either, since I am not specifying a "point" from which to get backups of my files. (They would still likely get protection under 512(c), though.)
There are all sorts of ways this particular section of the ruling can be abused. Hopefully it will be overruled or overturned.
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Using the above ambiguity and wide reach of the courts decision then the packet is able to be said to come under US jurisdiction and therefore a conflict of laws arises that the US would state they have control over.
That's worrying.
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For pirates and freeloaders.
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The data/packet contains something that is defamation per se under Australian laws.. YOU will be on the hook no matter what your Constitution states - think Gutnick, and the new laws re defamation in USA via UK shopping wont work then either since it actually occurred within Australian Jurisdictions under your own courts rulings.
Do you really want that?
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You think your economy is bad now.. Wait until the world basically stops reciprocity with you. You will be basically to put it bluntly screwed with your only option 'might' though that's not what it used to be either anymore.
To tell you the truth I and a lot of people don't care one iota what you do within your own jurisdictional boundaries (though we do care on a human social level about your own people) if you fuck yourselves so be it - we (the world) will deal with it afterwards.. But more and more of your courts rulings and government statutes are being based upon fear and ego of your industries and how there world view is not what they thought it was pre 1990 and it affects the rest of the planet ie: the 95%. This is not going to end in the USA's best interests and the more your own people realise this and start doing something about it and stop being so parochial the better for everyone.
In the meantime have a great Friday and weekend. I'm off to bed.
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Looks like CNET is in trouble./s
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