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Legal decision: US isoHunt closes: the BitTorrent hunter is hunted down

THE CASE: Industries and Ors v Gary Fung and Ors The US Court of Appeals for the Ninth Circuit March 2013

Retreating from its so-called “good fight” against the Motion Picture Association of America, isoHunt agrees to pay $110m in infringement damages. Seward & Kissel’s Jeffrey M Dine reviews the case’s development following a previous March court ruling

On 17 October 2013, the Motion to upload and download files efficiently, by internet traffic worldwide. In Europe, BitTorrent Picture Association of America (MPAA) breaking large files into many, much smaller is estimated to account for 22% of aggregate announced that it had settled its long- (approximately 256 kilobyte) parts. A user internet bandwidth, and in the Asia-Pacific running lawsuit against the BitTorrent with a file (which might be non-infringing, region, 37%. North America is substantially isoHunt.com and its operator, such as scientific data sets, or infringing, lower, at 12%.8 Bandwidth for BitTorrent Gary Fung. Key to the settlement was such as a movie) they wish to publish, uses in North America has dropped from 19% isoHunt’s agreement to shut down five BitTorrent client software to create a ‘torrent’ in 2011. In North America, Netflix accounts days later and have judgment entered file identifying the file, the number of pieces, for up to 32% of peak internet traffic, with against it for $110m.1 The site in fact a cryptographic ‘hash’ code unique to the YouTube also increasing.9 Thus, legitimate closed early, on 21 October, in the face of file to authenticate copies as complete and file streaming services now predominate over a concerted effort by “rogue archivists” the address of a ‘tracker’ computer that infringing uses in North America. to copy the entire website. Fung replaced maintains a list of all computers holding the site’s homepage with a rickrolling2 pieces of the file. The contains no The MPAA’s struggle with link to a supposed Salvation copyrighted material, just the metadata for isoHunt trailer on YouTube. As of this writing, the torrent information. The publisher uploads isoHunt, which began in 2003, was a torrent the archive site was up and running at the torrent file to a torrent site that hosts it, site, collecting and organising torrent files. a similar-sounding web address and is and which organises the torrent files it hosts The website allowed users to browse files by promising to offer new uploads soon. so that users can find them. The publisher type, search popularity and recency, as well isoHunt’s settlement came after a US keeps his computer running and connected as search. For a time, the homepage listed federal appeals court, in a March 2013 decision, to the internet, and BitTorrent’s magic starts to ‘Box Office Movies’ prominently. Clicking on affirmed a lower court’s determination that happen.6 a title brought the user to a webpage with isoHunt and related sites were liable for To download a file, a user running the information about the film, listing available contributory .3 By BitTorrent client software downloads the torrents (if any) and inviting the submission of settling, isoHunt averted a trial on damages in torrent file. The client software contacts the torrent files. isoHunt, however, did more than November 2013. tracker, which identifies computers (‘seeders’) simply gather torrent files. Rather, isoHunt that are online and hosting parts of the torrent modified the torrent files it collected by adding The role of BitTorrent in file to the client (a ‘leecher’), which contacts the additional trackers to them, giving the client copyright infringement seeders and starts downloading directly from software more options for finding seeders There are three main types of video piracy them. As the leecher downloads parts of the for the file and increasing the likelihood of a websites: video streaming (including host sites file, it becomes a seeder itself, making the parts successful download.10 This greater likelihood and link sites); direct download cyberlockers; it has downloaded available to other leechers. of success was presumably a strongly and BitTorrent portals.4 As examples, the now Because every computer that has downloaded appealing feature. Thus, isoHunt touted closed was a direct download the file is now a seeder, the demand on itself as “home to the most comprehensive cyberlocker, offering complete unitary files for each seeder is small, and downloading is BitTorrent search engine, with cross-referenced download. The related website MegaVideo not dependent on the availability of a single trackers data you can’t find anywhere else”.11 was a video streaming host site. The shuttered (or even mirrored) file server. The universe of Two other sites associated with isoHunt were website TVShack.net was a video streaming seeders and leechers for a given file is called both torrent sites and trackers. linking site.5 These sites offered the download a swarm. As rights owners recognise, “[a]s a The MPAA and major studios sued isoHunt or streaming of a single file. file-sharing application, [sic] has no for vicarious and contributory copyright BitTorrent works differently. In general equal on the internet”.7 infringement in 2006. In 2009, the district terms, BitTorrent is an open source peer-to- BitTorrent file transfers (infringing and court granted plaintiffs summary judgment. peer file-sharing protocol that allows users non-infringing) take up a substantial part of all It found isoHunt liable for contributory

www.intellectualpropertymagazine.com December 2013/January 2014 magazine 69

Legal decision: US

infringement and entered a broad preliminary branded web browser, designed to circumvent www.mpaa.org/resources/52c16680-37ab- injunction. The standard for contributory blocks to access. Even with the very active 4f0a-9756-b850fe37ca1c.pdf. infringement applied by the district court was efforts of the entertainment industry, online 2. To post a misleading link with a subject that (1) knowledge of another’s infringement and infringement continues to increase in absolute promises to be exciting or interesting… but (2) either (a) materially contributing to it or (b) terms. actually turns out to be the video for Rick inducing it.12 On the other hand, the proportionate Astley’s debut single, “Never Gonna Give You The court had no difficulty finding actual growth of Netflix (and YouTube) in North Up.” Urban Dictionary, available at http://www. infringement by users in the US. That isoHunt’s America offers a ray of hope, showing that urbandictionary.com/define.php?term=rickroll. servers were located in Canada did not shield users will seek reasonably priced legitimate 3. Columbia Pictures Industries and Ors v Gary it from liability. As for inducement, the court sources. But Netflix is not yet a substitute Fung and Ors, 710 F 3d 1020 (9th Cir 2013). applied the standard enunciated by the US source for current movies, likely leaving that 4. David Price, ‘Sizing the piracy universe’, at (7 Supreme Court, in a case involving the peer- demand unaffected. Content providers have Sept 2013), available at http://www.netnames. to-peer service : “One who distributes not yet found a business model for current com/digital-piracy-sizing-piracy-universe. The a device with the object of promoting its releases that will supplant online infringers and study, by NetNames, was commissioned by NBC use to infringe copyright, as shown by clear still satisfy their stakeholders. Universal. expression or other affirmative steps taken to 5. See Jeffrey Dine, ‘Within reaching distance’, foster infringement, is liable for the resulting Intellectual Property Magazine, November 2012, acts of infringement by third parties.”13 “After six years of at p55. The district court rejected isoHunt’s Digital 6. The appeals court’s description of the peer to Millenium Copyright Act (DMCA) statutory litigation, faced with peer networking generally and the BitTorrent safe harbor defences (for providers of certain massive damages, protocol in particular is quite comprehensible. internet services), on the basis that isoHunt’s 710 F3d at1025-28. liability for contributory infringement vitiated isoHunt folded. But 7. Price, supra n3, at 26. those defences.14 for the rightsholders, 8. id. 9. id at 27; Sandvine Global Internet Phenomena The Ninth Circuit rules the battle is Sisyphean. Report 1H2013, at 5-6 (available at https:// isoHunt appealed and, four years later, the www.sandvine.com/trends/global-internet- appeals court issued its decision. The appeals isoHunt has already phenomena/). court affirmed the district court’s finding been resurrected.” 10. 710 F3d at 1028-29. of liability. It analysed the Supreme Court’s 11. isoHunt.com, 25 Nov 2005, 23:35:51 (internet holding in Grokster, finding that liability for archive). infringement applies to those who supply a But, it is also true that the mindset that 12. Columbia Pictures Industries and Ors v Gary ‘service’ (such as a website), as well as to those copying movies and music is somehow Fung and Ors, No 06-cv-5578, 2009 US Dist who supply a device (such as software). As for not wrong is the root of the problem, as LEXIS 122661, at *25 (CD Cal 21 Dec, 2009). promotion of infringing use, the appeals court people who would not shoplift a tube of 13. Metro-Goldwyn-Mayer Studios, Inc v Grokster, found that (among other things) isoHunt’s toothpaste from a drug store will happily and 545 US 913, 936-37 (2005). featured list of ‘Box Office Movies’ and related knowingly download current movies from 14. 2009 US Dist Lexis 122661 at *67-68; see 17 invitation to upload a torrent for listed movies, torrent sites. Steve Jobs, in an interview with USC § 512. encouraged copyright infringement by users.15 Rolling Stone in 2003, called the internet 15. 710 F3d at 1035-36. The court also affirmed the rejection of an “amazingly efficient distribution system 16. id at 1039-46. isoHunt’s DMCA safe harbor defences. In the for stolen property”.17 Fung, in a posting on 17. Jeff Goodell, Steve Jobs: Rolling Stone’s appeals court’s analysis, it was theoretically isoHunt, commented, “This is the heart of the 2003 interview, republished 6 October 2011 possible, if highly unlikely, for the safe harbor problem that companies need to understand. available at http://www.rollingstone.com/ defences to apply in the face of a finding Although the term ‘stolen property’ isn’t music/news/steve-jobs-rolling-stones-2003- of contributory infringement. But in this correct: downloading a ‘copy’! = steal”.18 interview-20111006. case, where isoHunt actively encouraged Fung may well in his heart believe that, 18. isoHunt.com, 13 Dec 2003 14:33:50 (internet infringement, isoHunt was at the very least although it is a belief that aligned quite nicely archive). “!=” is used in programming to mean “aware of facts and circumstances” – red flags with his economic interest in propagating “not equal” as there is no ASCII version of the ≠ – “from which infringing activity is apparent.” infringement. symbol. Moreover, isoHunt received a direct financial It took the movie industry’s legion of lawyers Author benefit from the infringing activity, because six years to close isoHunt. Many other sites are Jeffrey M Dine is it made money from advertising and had the still operating, still engaged in a technological an associate in the ability to control infringement, also rendering and legal arms race with copyright owners. litigation group at the safe harbor unavailable.16 As has always been the case, the long-term Seward & Kissel in New York. He counsels solutions will not come from legal enforcement, US and foreign clients Comment but from continuing evolution in copyright in a wide range of After six years of litigation, faced with owners’ business models. matters, including massive damages, isoHunt folded. But for the copyright, trademark rightsholders, the battle is Sisyphean. isoHunt Footnotes and trade secrets, as well as complex has already been resurrected. 1. Press release, Motion Picture Association of commercial, securities and maritime (the most popular torrent site) has moved its America, ‘isoHunt.com to shut down in lawsuit litigations, arbitrations and arbitration enforcement actions. servers to the cloud and introduced its own settlement’ (17 Oct 2013), available at http://

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