Advanced Copyright Issues on the Internet - Fenwick & West LLP

user discussions, were agents of the defendants, and the defendants were therefore responsiblefor their acts. 1672– Defendants implemented technical features promoting copyright infringement:Defendants’ sites allowed users to locate dot-torrent files for desired content, the vast majority ofwhich was infringing. Fung implemented a spider program that located and obtained copies ofdot-torrent files from other sites, including well known infringing sites such as “The PirateBay.” 1673– Defendants’ business model depended on massive infringing use: The court foundthere no factual dispute that the availability of copyrighted material was a major draw for usersof Fung’s web sites, and there was no dispute that defendants derived revenue from the web siteand that this revenue increased along with the number of users. 1674The court rejected the defendants’ assertions of the safe harbors under Sections 512(a)and 512(d). The court ruled that, as a general proposition, “inducement liability and the DigitalMillennium <strong>Copyright</strong> Act safe harbors are inherently contradictory. Inducement liability isbased on active bad faith conduct aimed at promoting infringement; the statutory safe harbors arebased on passive good faith conduct aimed at operating a legitimate internet business. Here …Defendants are liable for inducement. There is no safe harbor for such conduct.” 1675Five months later, the court entered a permanent injunction against the defendants,enjoining them from, among other things, knowingly hosting, indexing, linking to, or otherwiseproviding access to any Dot-torrent or similar files that correspond, point to or lead to anycopyrighted works owned by the plaintiffs and for which the plaintiffs had provided the title tothe defendants, on or through any web site, system or software using BitTorrent or any peer-topeeror other file-sharing or content delivery technology. The defendants were also enjoinedfrom providing technical assistance or support services to users engaged in infringement;maintaining lists of “top” downloads that include the plaintiff’s copyrighted works; including inmetadata for any web pages, or maintaining browseable web site categories of Dot-torrent orsimilar files using, titles of the plaintiffs’ copyrighted works or terms widely known to beassociated with copyright infringement (such as “warez,” “Axxo,” “Jaybo,” “DVD Rips,” andthe like); or soliciting or targeting a user base generally understood, in substantial part, to beengaging in infringement of or seeking to infringe the plaintiffs’ copyrighted works. 1676 Theinjunction also provided that, “In the event a commercial vendor or other third party becomesable to provide Defendants with a reliable list of Plaintiffs’ <strong>Copyright</strong>ed Works, Plaintiffs mayapply to the Court for an order modifying this Permanent Injunction to relieve them of the1672 Id. at *44-47.1673 Id. at *51.1674 Id. at *55.1675 Id. at *67-68.1676 Columbia Pictures Industries, Inc. v. Fung, CV 06-5578 SVW (JCx) (C.D. Cal. May 20, 2010), slip op. at pp.12-14.- 364 -