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 them
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. 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.


Reader Comments (rss)

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    Anonymous Coward, Mar 21st, 2013 @ 12:29pm

    the results are bit troubling.

    ...when you support piracy as much as Mike Masnick does.

     

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    Anonymous Coward, Mar 21st, 2013 @ 12:32pm

    It's obvious that some people used IsoHunt to infringe.

    MOST people used it to infringe, you intellectually dishonest sleazeball.

     

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      Anonymous Coward, Mar 21st, 2013 @ 12:59pm

      Re:

      Obligatory [citation needed]

       

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        Anonymous Coward, Mar 21st, 2013 @ 5:58pm

        Re: Re:

        Ya'll noticed that the court specifically noted Ad Sponsored Piracy, right?

        "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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          Anonymous Coward, Mar 21st, 2013 @ 6:32pm

          Re: Re: Re:

          Ya'll noticed that the court specifically noted Ad Sponsored Piracy, right?

          "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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    Anonymous Coward, Mar 21st, 2013 @ 12:36pm

    It is entirely possible that a movie could put up a legitimate torrent

    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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    out_of_the_blue, Mar 21st, 2013 @ 12:40pm

    This isn't surprising. Adults have looked at the law and the facts.

    Yot, all the factors are there.

    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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      Anonymous Coward, Mar 21st, 2013 @ 1:03pm

      Re: This isn't surprising. Adults have looked at the law and the facts.

      Of course all the factors are there, they used the ones that are obviously there to prove the others. Furthermore the entire test was constructed specifically to create a new kind of copyright liability that could be used to go after services like ISOhunt. Obviously when you make up a legal theory to go after a specific type of thing it's easy to find that your legal theory fits the thing that was the point. The issue remains that inducement isn't based in the legal code but in bad precedent.

       

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      Anonymous Coward, Mar 21st, 2013 @ 2:46pm

      Re: This isn't surprising. Adults have looked at the law and the facts.

      LOL out_of_the_blew_Billy_Baldwin_for_pcp do you try to be wrong about everything?

      I bet your lips are raw.

       

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    bob, Mar 21st, 2013 @ 12:41pm

    Wow-- what a loony apology for IsoHunt

    If there were an Olympics event for legal, emotional and logistic contortions, this piece could probably win a gold medal. It's amazing to plow through this and watch you argue every tiny point trying to make it seem like IsoHunt is somehow not guilty of what they were so obviously doing.

    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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      Anonymous Coward, Mar 21st, 2013 @ 12:56pm

      Re: Wow-- what a loony apology for IsoHunt

      Yeah, this piece is the legal contortion. Not the act of creating the 'inducement' theory and it's application in this case.

       

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    Atkray (profile), Mar 21st, 2013 @ 12:51pm

    hmm ac, blue, and bob all within 5 minutes and all full of sour grapes.

    Interesting that.

    Here boys, have a report each.

     

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      Anonymous Coward, Mar 21st, 2013 @ 12:57pm

      Re:

      A drawer of socks?
      Maybe they were all at the same circle jerk that finished up moments before the article was posted?

       

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      out_of_the_blue, Mar 21st, 2013 @ 1:06pm

      Re: @Atkray: yes, it IS strange that Ninja and Rikuo still haven't posted!

      They nearly always pop in with the first one-liners in support of whatever; they're on automatic, knee-jerk cheering squad.

      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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    out_of_the_blue, Mar 21st, 2013 @ 12:57pm

    2nd read: the key point to emphasize is follow the MONEY:

    "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)."

    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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      Anonymous Coward, Mar 21st, 2013 @ 12:58pm

      Re: 2nd read: the key point to emphasize is follow the MONEY:

      blue you've gone on the record as saying that earning money from any source is obviously evidence of stealing so of course you think any earned income is evidence of some kind of crime.

       

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        out_of_the_blue, Mar 21st, 2013 @ 1:12pm

        Re: Re: 2nd read: the key point to emphasize is follow the MONEY:

        This again sounds like "Dark Helmet" familiarly calling me "blue".

        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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          Anonymous Coward, Mar 21st, 2013 @ 4:01pm

          Re: Re: Re: 2nd read: the key point to emphasize is follow the MONEY:

          Yet buying low and selling high a product that you do not, yourself, create is 'grifting.' Hmmm....

           

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          Anonymous Coward, Mar 22nd, 2013 @ 4:49am

          Re: Re: Re: 2nd read: the key point to emphasize is follow the MONEY:

          I love how you plead innocence and ask for me to cite an exact comment but can't help yourself and go on a rant that basically backs up what I'm saying immediately afterward.

           

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    silverscarcat (profile), Mar 21st, 2013 @ 12:59pm

    Wow...

    All of the trolls at once? Mike, it's not even Friday.

     

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      Anonymous Coward, Mar 21st, 2013 @ 1:03pm

      Re: Wow...

      Must have hit them pretty close to the mark to get them all riled up like that huh?

       

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        bob, Mar 21st, 2013 @ 1:48pm

        Re: Re: Wow...

        Riled up? We're partying dude. This is a wonderful day!

         

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          Anonymous Coward, Mar 21st, 2013 @ 1:59pm

          Re: Re: Re: Wow...

          This.

          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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          silverscarcat (profile), Mar 21st, 2013 @ 2:40pm

          Re: Re: Re: Wow...

          Yes, I'm sure you're partying because now Safe Harbors have been ruled against which is one of the things that allows the internet, television, radio and newspapers to exist without being sued into oblivion.

           

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            Anonymous Coward, Mar 21st, 2013 @ 2:54pm

            Re: Re: Re: Re: Wow...

            because now Safe Harbors have been ruled against

            No they haven't.

            You're about as sharp as a bowling ball, aren't you, pirateboy?

             

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              Anonymous Coward, Mar 21st, 2013 @ 3:08pm

              Re: Re: Re: Re: Re: Wow...

              "contributory infringement" is an imaginary standard that was pulled out of the ass of legal grey-areas.

               

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                Anonymous Coward, Mar 21st, 2013 @ 3:34pm

                Re: Re: Re: Re: Re: Re: Wow...

                Perhaps so. But here it is. Now deal with it.

                 

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              silverscarcat (profile), Mar 21st, 2013 @ 3:20pm

              Re: Re: Re: Re: Re: Wow...

              And you can prove I'm a pirate, how?

              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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    jameshogg (profile), Mar 21st, 2013 @ 1:03pm

    Opponents who posted above. I would like to ask a question:

    What evidence would it take to falsify Copyright for you?

    I am curious because I am a skeptic and advocator of scientific inquiry.

     

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      Anonymous Coward, Mar 21st, 2013 @ 3:03pm

      Re: Opponents who posted above. I would like to ask a question:

      This would be an interesting read. I second the question.

       

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    Anonymous Coward, Mar 21st, 2013 @ 1:04pm

    ...as copyright liability depends on one’s purposeful involvement in the process of reproducing copyrighted material, not the precise nature of that involvement.

    Ooooo, I like this line the best!!

     

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      Anonymous Coward, Mar 21st, 2013 @ 1:48pm

      Re:

      Yeah, that's a good one. There's lots of tasty nuggets in this opinion. I'm about to read it again.

       

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        Niall (profile), Mar 22nd, 2013 @ 7:18am

        Re: Re:

        So Tim Berners-Lee 'invented' hyperlinks which are 'purposefully involved' in reproducing copyrighted material on IsoHunt, so he's guilty of 'inducement' ('precise nature' is irrelevant). Classy!

         

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          Anonymous Coward, Mar 22nd, 2013 @ 7:51am

          Re: Re: Re:

          So Tim Berners-Lee 'invented' hyperlinks which are 'purposefully involved' in reproducing copyrighted material on IsoHunt, so he's guilty of 'inducement' ('precise nature' is irrelevant). Classy!

          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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    Zakida Paul (profile), Mar 21st, 2013 @ 1:06pm

    The trolls/idiots are out in force on this one

     

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      out_of_the_blue, Mar 21st, 2013 @ 1:15pm

      Re: @"The trolls/idiots are out in force on this one"

      By Zakida Paul (profile), Mar 21st, 2013 @ 1:06pm

      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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    Anonymous Coward, Mar 21st, 2013 @ 1:16pm

    let's face it, any and all courts are going to side with the entertainment industries in just about every case. look at the encouragements handed out and the orders from government telling them what way to rule (as in the Thomas case). it's about time that all these various sites realised that they are never gonna win on their own, regardless of how much money they have to pay for lawyers etc and regardless of the non infringing files contained as well. this is a complete exercise in the stopping of file sharing, even though the majority of it is non-infringing. governments are so worried about their own citizens finding out what they are up to and that the information will go global. the only way forward is to amalgamate, particularly when the MPAA are now gonna start going after cloud services. until they have complete control of the internet or have destroyed it, the best information service so far devised, they are not gonna be happy. any and all collateral damage, from false shut downs to lives destroyed, as in the case of Aaron Swartz, is irrelevant to them.

     

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      Anonymous Coward, Mar 21st, 2013 @ 2:01pm

      Re:

      "let's face it, any and all courts are going to side with the law"

      FTFY.

      Sorry you and Masnick get so butthurt about that.

       

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    Anonymous Coward, Mar 21st, 2013 @ 1:21pm

    Shocking. Mike doesn't like the opinion and finds it "troubling." All I had to know was that Fung lost, and I then immediately knew that Mike was "troubled" by the opinion. But, yeah, Mike's not a pirate apologist. Not at all.

    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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      Rik Wessels, Mar 21st, 2013 @ 1:38pm

      Re:

      you were using a good argument until the last paragraph . There isn't actually anything ON Isohunt ( which you claim ) . You cannot infringe on the site because there's no files present. It is - in effect - a search-engine ,just like piratebay is/was . In order for government to enforce verdicts like this one they'd now have to after Google itself - good luck on that one - as you can actually skip all portal sites like Isohunt or Piratebay and conduct a search in Google ...

      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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        Anonymous Coward, Mar 21st, 2013 @ 1:45pm

        Re: Re:

        you were using a good argument until the last paragraph . There isn't actually anything ON Isohunt ( which you claim ) .

        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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          Karl (profile), Mar 21st, 2013 @ 5:11pm

          Re: Re: Re:

          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.

          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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            Anonymous Coward, Mar 21st, 2013 @ 5:38pm

            Re: Re: Re: Re:

            In truth, I think Mike's concerns are valid, but the actual ruling is not as bad as he believes.

            It is an unmitigated disaster for anyone facilitating infringement in any form that can be charged in the Ninth Circuit.

             

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              Karl (profile), Mar 21st, 2013 @ 6:02pm

              Re: Re: Re: Re: Re:

              It is an unmitigated disaster for anyone facilitating infringement in any form that can be charged in the Ninth Circuit.

              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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            Anonymous Coward, Mar 21st, 2013 @ 5:55pm

            Re: Re: Re: Re:

            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.

            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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              Karl (profile), Mar 21st, 2013 @ 6:29pm

              Re: Re: Re: Re: Re:

              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.

              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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                Karl (profile), Mar 21st, 2013 @ 6:30pm

                Re: Re: Re: Re: Re: Re:

                A hyperlink, on the other hand

                Uh, I meant a "web page location," not a hyperlink. Sorry.

                 

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                Anonymous Coward, Mar 21st, 2013 @ 6:41pm

                Re: Re: Re: Re: Re: Re:

                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.

                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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                  Anonymous Coward, Mar 21st, 2013 @ 7:03pm

                  Re: Re: Re: Re: Re: Re: Re:

                  The Court covered that here:

                  ...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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                  Karl (profile), Mar 21st, 2013 @ 7:47pm

                  Re: Re: Re: Re: Re: Re: Re:

                  That strikes me as a distinction without a difference.

                  It certainly made a difference in the Perfect 10 v. Google case.

                   

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                    Anonymous Coward, Mar 21st, 2013 @ 11:59pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    You are aware that case would never pass the SC sniff test, correct?

                     

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                      Anonymous Coward, Mar 22nd, 2013 @ 5:03am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      So you think the SC would rule different, what difference does that make? None.

                       

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                      Anonymous Coward, Mar 22nd, 2013 @ 6:23am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Thanks for your faith-based assertion. Do you have anything other than wishful thinking to back this up?

                       

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                    Anonymous Coward, Mar 22nd, 2013 @ 5:17am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    It certainly made a difference in the Perfect 10 v. Google case.

                    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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                  G Thompson (profile), Mar 21st, 2013 @ 9:40pm

                  Re: Re: Re: Re: Re: Re: Re:

                  The difference is that a web page is in a specific location designated by it's URL (which in reality is a specific IP4 location) whereas a .torrent file does not point to one specific location but dynamic ones that might or might not exist any more (seeders change)

                  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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              Karl (profile), Mar 23rd, 2013 @ 10:23am

              Re: Re: Re: Re: Re:

              Sorry to keep harping on this point, but here's another minor error you made. It may not seem like much, but it will help explain why the 512(a) safe harbors should apply.

              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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      Anonymous Coward, Mar 21st, 2013 @ 1:42pm

      Re:

      Nice to see you have Masnick writhing in the crushing grip of reason.

       

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        Anonymous Coward, Mar 21st, 2013 @ 1:59pm

        Re: Re:

        I expect his usual silence in return. ;)

         

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      Anonymous Coward, Mar 21st, 2013 @ 3:40pm

      Re:

      I have a pretty good idea how Judge Berzon would rule on that if he had to . . . .

      Oops. My bad. Judge Berzon is a "she." http://en.wikipedia.org/wiki/Marsha_S._Berzon

       

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    Anonymous Coward, Mar 21st, 2013 @ 1:39pm

    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.

    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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      Anonymous Coward, Mar 21st, 2013 @ 2:06pm

      Re:

      Wow. It amazes me that you publish this stuff.

      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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        Anonymous Coward, Mar 21st, 2013 @ 3:01pm

        Re: Re:

        The project that stops piracy?

         

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        Karl (profile), Mar 21st, 2013 @ 5:14pm

        Re: Re:

        The project worked.

        If by "project," you mean "calculated smear campaign." And if by "worked," you mean "made Mike more influential."

         

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          Anonymous Coward, Mar 21st, 2013 @ 5:29pm

          Re: Re: Re:

          No by project he means "revealed". By worked he means "further marginalized".
          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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        Niall (profile), Mar 22nd, 2013 @ 7:24am

        Re: Re:

        The one where you throw so much mud at your shiny mirror that some of it actually sticks, warranted or not?

         

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      Digdug (profile), Mar 21st, 2013 @ 3:22pm

      Re:

      Do you know for certain that the vast majority of the content was of an infringing nature or are you making an assumption? If so I would love to see the breakdown as I'm actually curious as to the general content found on a torrent site.

       

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        Anonymous Coward, Mar 21st, 2013 @ 3:24pm

        Re: Re:

        Do you know for certain that the vast majority of the content was of an infringing nature or are you making an assumption? If so I would love to see the breakdown as I'm actually curious as to the general content found on a torrent site.

        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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          Digdug (profile), Mar 21st, 2013 @ 3:30pm

          Re: Re: Re:

          Interesting, assuming the expert knows what they're doing anyway. Thank you.

           

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          Anonymous Coward, Mar 21st, 2013 @ 5:30pm

          Re: Re: Re:

          crickets...

           

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          Anonymous Coward, Mar 22nd, 2013 @ 5:07am

          Re: Re: Re:

          Setting aside the fact that the proportion of materials available isn't the same thing as the proportion of the materials people used the service for AND that neither metric would even speak to if the infringing nature of the material, rather than just its availability, was what drew people in that was an expert paid by the plantiff to find that 90%+ of the materials available were infringing.

           

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    DMNTD, Mar 21st, 2013 @ 2:39pm

    Tripe.

    Have your day in court copyright maximalist. Fifteen minutes of fame. You sit there worried about protections that provide fiat money to your gate keeping coffers. This WHOLE thing is a useless fucking distraction, while the elites eat your rights away and turn America into third world country sludge.

    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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    Anonymous Coward, Mar 21st, 2013 @ 2:45pm

    You can almost see

    the pockets bulge from all the money exchanging hands, it's the only solution for such ridiculousness

     

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    Anonymous Coward, Mar 21st, 2013 @ 3:01pm

    Ah the joys of children.

    It wouldn't matter if no one ever used a bad word or name calling and always posted completely cordial and rational well thought-out replies, the trolls on BOTH sides (and there IS another side) would still find something to complain about. Dear Bob it's sad seeing so many hidden comments in one thread. It's like starting a debate on guns in the US for Bob's sake, it never ends well.

     

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    out_of_the_blue, Mar 21st, 2013 @ 3:21pm

    Pirtae mike once again supporting theft form artistist and creators, usual looney suppoprters.

    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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      Digdug (profile), Mar 21st, 2013 @ 3:24pm

      Re:

      If you frequently complain about people calling you names and/or attacking your sanity/intelligence then do the same to your opponents, what does that make you exactly? You are no better than your opponent if you resort to the same tactics they use.

       

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      Anonymous Coward, Mar 21st, 2013 @ 3:38pm

      Re:

      And once again out of the blue making a comment about Mike supporting theft from artists and creators and usual looney supporters is also showing once again his support of Mike supporting theft etc. by commenting.

      If you don't want to support someone then don't make a comment about them.

       

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      Anonymous Coward, Mar 22nd, 2013 @ 3:55am

      Re:

      Terrorist apologist ootb once again supporting unwarranted intimidation and theft from innovators, usual unscrupulous supporters.

      Same design, more truth.

       

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    Joe, Mar 21st, 2013 @ 4:47pm

    Why was this case tried in the U.S.? Fung is based in Richmond, BC, Canada and the section of his website dealing with copyright claims has this line:

    ====
    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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    Anonymous Coward, Mar 21st, 2013 @ 4:56pm

    They know the user was a she? Sounds like a setup.

     

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    Karl (profile), Mar 21st, 2013 @ 5:49pm

    Most troubling bit

    Actually, the part of the ruling I found most troubling was this part, which Mike did not even address:
    Unlike a P2P network like Napster, in which users select particular files to download from particular users, Fung's trackers manage a "swarm" of connections that source tiny pieces of each file from numerous users; the user seeking to download a file chooses only the file, not the particular users who will provide it, and the tracker identifies the source computers to the user seeking to download a work.

    Given these characteristics, Fung's trackers do not fit the definition of "service provider" that applies to this safe harbor. The definition provides that a "service provider" provides "connections ... between or among points specified by a user." 17 U.S.C. 512(k)(1)(A) (emphasis added). Here, it is Fung's tracker that selects the "points" to which a user's client will connect in order to download a file. The tracker, not the requesting user, selects the publishers from which chunks of data will be transmitted.

    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):
    (3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;

    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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      Anonymous Coward, Mar 21st, 2013 @ 6:21pm

      Re: Most troubling bit

      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).

      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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        Anonymous Coward, Mar 21st, 2013 @ 6:38pm

        Re: Re: Most troubling bit

        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.

        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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          Anonymous Coward, Mar 21st, 2013 @ 6:59pm

          Re: Re: Re: Most troubling bit

          Right. Karl is missing that Fung was not a mere passive conduit...

          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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          Karl (profile), Mar 21st, 2013 @ 7:29pm

          Re: Re: Re: Most troubling bit

          Fung can't get the safe harbor because he played a role in telling people where to find the infringing stuff.

          To be clear: That is not what the court said.
          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.

           

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            Anonymous Coward, Mar 22nd, 2013 @ 5:16am

            Re: Re: Re: Re: Most troubling bit

            To be clear: That is not what the court said.

            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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              Niall (profile), Mar 22nd, 2013 @ 7:28am

              Re: Re: Re: Re: Re: Most troubling bit

              But then you could read that as any kind of 'intelligent switching' - like even a telephone switch - would block that safe harbour. That's daft.

               

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                John Fenderson (profile), Mar 22nd, 2013 @ 10:28am

                Re: Re: Re: Re: Re: Re: Most troubling bit

                This. By the interpretation that the AC is using, very nearly no service provider would be eligible for safe harbor protections. Especially not the big ISPs like Comcast.

                 

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              Karl (profile), Mar 22nd, 2013 @ 8:03am

              Re: Re: Re: Re: Re: Most troubling bit

              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.

              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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        Karl (profile), Mar 21st, 2013 @ 7:21pm

        Re: Re: Most troubling bit

        Wouldn't there have to be evidence of deliberate wrong-doing by Comcast or Verizon as well?

        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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          Anonymous Coward, Mar 22nd, 2013 @ 5:19am

          Re: Re: Re: Most troubling bit

          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.


          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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            Karl (profile), Mar 22nd, 2013 @ 8:22am

            Re: Re: Re: Re: Most troubling bit

            I read the whole section as turning on the fact that Fung's conduct was intimately involved in the routing.

            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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      Anonymous Coward, Mar 21st, 2013 @ 6:26pm

      Re: Most troubling bit

      This would mean that no torrent tracker whatsoever is eligible for immunity under the safe harbors.

      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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        Karl (profile), Mar 21st, 2013 @ 7:13pm

        Re: Re: Most troubling bit

        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."

        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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          G Thompson (profile), Mar 21st, 2013 @ 9:53pm

          Re: Re: Re: Most troubling bit

          I'm waiting on lower courts to then use this to state that any routed packets coming from Overseas going through US main routings then back to Overseas recipients : ie: packet A originates in Greece goes to major routing node in LA then routes to South Africa to end up at user who requested it, though all other packets go via EU/Asia routers.

          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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            Anonymous Coward, Mar 22nd, 2013 @ 6:19am

            Re: Re: Re: Re: Most troubling bit

            That's worrying.

            For pirates and freeloaders.

             

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              G Thompson (profile), Mar 22nd, 2013 @ 6:37am

              Re: Re: Re: Re: Re: Most troubling bit

              No that's worrying for anyone. Say for example you being in the USA send a piece of data to England that some of it somehow (and it can happen) winds its way via routers in Australia.

              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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                G Thompson (profile), Mar 22nd, 2013 @ 6:45am

                Re: Re: Re: Re: Re: Re: Most troubling bit

                It's also worrying under implied Reciprocity treaties that the US is starting to claim its dominion over everything that happens electronically on and even beyond the planet.

                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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          Anonymous Coward, Mar 22nd, 2013 @ 5:27am

          Re: Re: Re: Most troubling bit

          I think it's really simple, and for some reason you're not seeing it. 512(a) only applies to dumb pipes that take orders dumbly from users. Fung didn't supply dumb pipes. He played an active role in telling users where to find the infringing materials. 512(a) only applies to PASSIVE conduits, not ACTIVE conduits like Fung.

           

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    Anonymous Coward, Mar 23rd, 2013 @ 10:53am

    The real criminals are people like this judge, who should be run out on a rail, tared and feathered.

     

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    btrussell (profile), Mar 24th, 2013 @ 2:59am

    "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."

    Looks like CNET is in trouble./s

     

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