The United States Court of Appeals for the 9th Circuit upheld summary judgment against isoHunt, a Canada based BitTorrent search engine, for contributory copyright infringement.

In the decision, the Court held isoHunt Web Technologies and its principal, Mr. Fung, had induced copyright infringement and was not entitled to protection from liability under the safe harbor provisions of the Digital Millennium Copyright Act (DMCA). The proceeding had been brought by major film studios against Gary Fung and isoHunt, a BitTorrent peer-to-peer search facility operated out of Canada.

isoHunt did not itself share copyright protected content or provide the BitTorrent client software. isoHunt only provided torrernt sites and trackers – ie a list of peers that have files available for download. isoHunt also modified the trackers to make them more reliable by adding backup trackers to it.

Applying the USSC’s Grokster III decision the Court held that:

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 [as in Grokster III] or providing some service [as in this case] used in accomplishing the infringement. [p23]

The Court found that the vastly predominant use of the service was to infringe copyright. The Court found evidence that the defendants offered their service with the object of promoting their use to infringe copyright, including by inviting uploading torrent files for copyrighted content.

The Court held that one need not show that infringement be caused by manifestations of the distributor’s improper object but merely that the infringement be caused by the service:

… a service that could be used to infringe copyrights, with the manifested intent that the service actually be used in that manner, that person is liable for the infringement that occurs through the use of the service. [p32/33]

The Court cautioned against using the “lax causation requirement” to enlarge the scope of copyright’s statutory monopoly saying that defendant’s intention is paramount.

In considering the defendants’ DMCA defences, the Court rejected the plaintiff’s position that DMCA safe harbors could never be used with inducement liability. In this case, the Court reversed several holdings of the lower court but held that the services were not entitled to safe harbor as they were not ‘service providers’, had received ‘red flag’ knowledge of infringing activity and derived revenue from the infringing activity.

The Court modified the permanent injunction on the basis it was unduly vague.

The isoHunt case has been closely watched as it addresses the next generation of downloading after Napster and Grokster. isoHunt is also involved in litigation in Canada with various copyright owners.