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Columbia Pictures Industries Inc v Fung

Columbia Pictures Industries Inc v Fung

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Published by Ray Dowd
BitTorrent is a technology that breaks copyrighted works into small bits called “torrent” files. Trackers are locations that index and give directions to how to download torrent files. Torrent sites tell folks where to find trackers and torrents, but don’t actually transfer or copy copyrighted works.
BitTorrent is a technology that breaks copyrighted works into small bits called “torrent” files. Trackers are locations that index and give directions to how to download torrent files. Torrent sites tell folks where to find trackers and torrents, but don’t actually transfer or copy copyrighted works.

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Published by: Ray Dowd on May 05, 2014
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Columbia Pictures Industries, Inc. v. Fung, 710 F.3d 1020 (2013)
2013 Copr.L.Dec. P 30,400, 85 Fed.R.Serv.3d 103, 106 U.S.P.Q.2d 1602...
 © 2014 Thomson Reuters. No claim to original U.S. Government Works.1
710 F.3d 1020United States Court of Appeals,Ninth Circuit.COLUMBIA PICTURES INDUSTRIES, INC.; Disney Enterprises, Inc.; Paramount Pictures Corporation;Tristar Pictures, Inc.; Twentieth Century FoxFilm Corporation; Universal City Studios LLLP;Universal City Studios Productions, LLLP; WarnerBros Entertainment, Inc., Plaintiffs–Appellees, v.Gary  FUNG; isoHunt Web Technologies,Inc., Defendants–Appellants.No. 10–55946. | Argued Ma6, 2011. | Submitted March 21,2013. | Filed March 21, 2013.
SynopsisBackground:
 Various film studios brought action allegingthat the services offered and websites maintained bydistributor induced third parties to download infringingcopies of the studios' copyrighted works through use of hybrid peer-to-peer file sharing protocol. The United StatesDistrict Court for the Central District of California, StephenV. Wilson, J., 2009 WL 6355911, found distributor liable for contributory copyright infringement, and issued aninjunction, and distributor appealed.
Holdings:
 The Court of Appeals, Berzon, Circuit Judge, heldthat:[1] distributor offered his services with the object of promoting their use to infringe copyrighted material as shownby clear expression or other affirmative steps taken to fosterinfringement;[2] distributor was not eligible for Digital MillenniumCopyright Act's (DMCA) safe harbor; and[3] injunction was too vague, and was more burdensome thannecessary to provide studios relief.Affirmed in part, vacated in part, injunction modified in part.West Headnotes (17)
[1]Copyrights and Intellectual Property
Persons liableLiability for inducement of copyrightinfringement has four elements: (1) thedistribution of a device or product, (2) acts of infringement, (3) an object of promoting its useto infringe copyright, and (4) causation.4 Cases that cite this headnote
[2]Copyrights and Intellectual Property
Subjects of Copyright
Copyrights and Intellectual Property
Persons liableCopyrights protect expression, not products ordevices, and inducement liability is not limited tothose who distribute a “device;” as a result, onecan infringe a copyright through culpable actionsresulting in the impermissible reproduction of copyrighted expression, whether those actionsinvolve making available a device or product orproviding some service used in accomplishingthe infringement.Cases that cite this headnote
[3]Copyrights and Intellectual Property
Persons liableInducement copyright doctrine applies toservices available on the Internet as well as todevices or products.1 Cases that cite this headnote
[4]Copyrights and Intellectual Property
Acts Constituting InfringementBoth uploading and downloading copyrightedmaterial are infringing acts. 17 U.S.C.A. § 106(1,3).7 Cases that cite this headnote
[5]Copyrights and Intellectual Property
 
Columbia Pictures Industries, Inc. v. Fung, 710 F.3d 1020 (2013)
2013 Copr.L.Dec. P 30,400, 85 Fed.R.Serv.3d 103, 106 U.S.P.Q.2d 1602...
 © 2014 Thomson Reuters. No claim to original U.S. Government Works.2
Persons liable“Clear expression or other affirmative steps” isnot a separate requirement to establish copyrightinfringement on an inducement theory, but,rather, an explanation of how the improperobject of promoting use of device to infringecopyrighted material must be proven.2 Cases that cite this headnote
[6]Copyrights and Intellectual Property
Persons liableDistributor, whose websites induced thirdparties to download infringing copies of filmstudios' copyrighted works, offered his serviceswith the object of promoting their use toinfringe copyrighted material as shown byclear expression or other affirmative stepstaken to foster infringement, and therefore wasliable for contributory copyright infringementon an inducement theory; distributor's postswere explicitly designed to stimulate others tocommit copyright violations, and so were highlyprobative of an unlawful intent, and distributor communicated a clear message by respondingaffirmatively to requests for help in locating andplaying copyrighted materials.3 Cases that cite this headnote
[7]Copyrights and Intellectual Property
Persons liableIf one provides a service that could be used toinfringe copyrights, with the manifested intentthat the service actually be used in that manner,that person is liable for the infringement thatoccurs through the use of the service.Cases that cite this headnote
[8]Copyrights and Intellectual Property
Persons liableOnly causation requirement for liability forcopyright infringement on an inducement theoryis that the product or service was used toinfringe the plaintiff's copyrights; however, mereknowledge of infringing potential or of actualinfringing uses does not subject a productdistributor or service provider to liability.2 Cases that cite this headnote
[9]Copyrights and Intellectual Property
DefensesDigital Millennium Copyright Act (DMCA)safe harbors are affirmative defenses on whichdefendant has burden of establishing that hemeets the statutory requirements. 17 U.S.C.A. §512(a, c, d).1 Cases that cite this headnote
[10]Copyrights and Intellectual Property
DefensesBecause they selected which users wouldcommunicate with each other, trackers of distributor's websites, which induced thirdparties to download infringing copies of thestudios' copyrighted works through use of hybridpeer-to-peer file sharing protocol, served asmore than “conduits” between computer users,were not “service providers” within meaning of Digital Millennium Copyright Act (DMCA), andwere not eligible for DMCA's “conduit” safeharbor. 17 U.S.C.A. § 512(a), (k)(1)(A). 1 Cases that cite this headnote
[11]Copyrights and Intellectual Property
DefensesDistributor, whose websites induced third partiesto download infringing copies of film studios'copyrighted works through use of hybridpeer-to-peer file sharing protocol, was noteligible for Digital Millennium Copyright Act's(DMCA) safe harbor; record was replete withinstances of distributor actively encouraginginfringement, by urging his users to bothupload and download particular copyrightedworks, providing assistance to those seeking towatch copyrighted films, and helping his usersburn copyrighted material onto DVDs, and the material was sufficiently current and well-knownthat it would have been objectively obvious to areasonable person that the material solicited and
 
Columbia Pictures Industries, Inc. v. Fung, 710 F.3d 1020 (2013)
2013 Copr.L.Dec. P 30,400, 85 Fed.R.Serv.3d 103, 106 U.S.P.Q.2d 1602...
 © 2014 Thomson Reuters. No claim to original U.S. Government Works.3
assisted was both copyrighted and not licensedto random members of the public, and thatthe induced use was therefore infringing. 17U.S.C.A. § 512(c).4 Cases that cite this headnote
[12]Copyrights and Intellectual Property
DefensesWhere a service provider obtains revenuefrom “subscribers,” the relevant inquiry indetermining eligibility for Digital MillenniumCopyright Act's (DMCA) safe harbor is whetherthe infringing activity constitutes a draw forsubscribers, not just an added benefit; lack of direct financial benef it prong of the safe harborrequirement is central, rather than peripheral. 17U.S.C.A. § 512(c)(1)(B).Cases that cite this headnote
[13]Copyrights and Intellectual Property
DefensesDistributor, whose websites induced third partiesto download infringing copies of film studios'copyrighted works through use of hybridpeer-to-peer file sharing protocol, was noteligible for Digital Millennium Copyright Act's(DMCA) safe harbor as distributor derived“financial benefit directly attributable to theinfringing activity,” and had “right and abilityto control” the infringing activities of users; connection between the infringing activityand distributor's income stream derived fromadvertising was sufficiently direct to meet thedirect “financial benefit” prong as distributorpromoted advertising by pointing to infringingactivity, obtained advertising revenue thatdepended on the number of visitors to his sites,attracted primarily visitors who were seeking toengage in infringing activity, and encouragedthat infringing activity, and distributor wasbroadly aware of facts or circumstances fromwhich infringing activity was apparent. 17U.S.C.A. § 512(c)(1)(B), (d). Cases that cite this headnote
[14]Injunction
Specificity, vagueness, overbreadth, andnarrowly-tailored relief Those against whom an injunction is issuedshould receive fair and precisely drawn notice of what the injunction actually prohibits. Fed.RulesCiv.Proc.Rule 65, 28 U.S.C.A.Cases that cite this headnote
[15]Copyrights and Intellectual Property
Permanent relief Definition of “infringement–related terms” usedin injunction issued against distributor, whosewebsites induced third parties to downloadinfringing copies of film studios' copyrightedworks through use of hybrid peer-to-peerfile sharing protocol, was vague, and had tobe therefore modified to state simply thatthe phrase included specifically named terms;additionally, it was unclear whether the “in substantial part” referred to the “user base,”the “generally understood” phrase, or the“engaging in infringement” phrase. Fed.RulesCiv.Proc.Rule 65, 28 U.S.C.A.Cases that cite this headnote
[16]Injunction
Specificity, vagueness, overbreadth, andnarrowly-tailored relief Injunctive relief should be no more burdensometo the defendant than necessary to providecomplete relief to the plaintiffs' before the court.Cases that cite this headnote
[17]Copyrights and Intellectual Property
Permanent relief Insofar as injunction issued against distributor,whose websites induced third parties todownload infringing copies of film studios'copyrighted works through use of hybrid peer-to-peer file sharing protocol could be interpretedto prohibit distributor from seeking legitimateemployment, it was more burdensome than

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