In an opinion written by Judge Marsha Berzon, the court ruled that isoHunt, owned by Gary Fung, the court said that “there is more than enough unrebutted evidence in the summary judgment record to prove Fung offered his services with the object of promoting their use to infringe copyrighted material.” Berzon cited instances where Fung responded personally to queries for assistance in “uploading torrent files corresponding to obviously copyrighted material, finding particular copyrighted movies and television shows, getting pirated material to play properly, and burning the infringing content onto DVDs for playback on televisions.” The site uses the BitTorrent protocol.
The appellate court said that Fung had “red flag knowledge” of infringement on his site and that they were also ineligible for so-called “safe harbor” protection because they benefited from advertising yet had the “right and ability to control” the copyright violations taking place on isoHunt.
U.S. District Court Judge Steven Wilson granted summary judgment to the studios in 2009, and later issued an injunction preventing Fung from linking, hosting or providing any kind of access to studio works.
Still to come is a trial to determine the amount of damages that Fung must pay. In the opinion, Berzon wrote that even though they found that he was liable for inducing infringement, they left it to the district court to decide “the degree to which” Fung caused infringements by users of his sites.
Fung had argued that the injunction was punitive and unduly vague and violated his right to free speech. He also contended that the injunction exceeded the court’s jurisdiction because it required the filtering of communications that occur outside of the United States.
The appellate court did side with Fung in finding that parts of the injunction were vague, and said that one provision restricting his potential employment at certain other technology companies was “unduly burdensome.”
Henry Hoberman, senior exec VP and global general counsel for the MPAA, said in a statement that the ruling “affirms a core principle of copyright law: Those who build businesses around encouraging, enabling and helping others to commit copyright infringement are themselves infringers, and will be held accountable for their illegal actions.”