In a decision that likely comes as no shock to anyone who is not named “Gary Fung,” IsoHunt founder Gary Fung suffered another loss in court last week, when a panel of judges from the Ninth Circuit Court of Appeals affirmed a lower court’s finding that the defendants were liable for contributory copyright infringement on the “inducement theory” pioneered in the MGM v. Grokster case.
If you’re familiar with the history of the case, you might reasonably have come to the conclusion that Gary Fung’s worst enemy in the case is, in fact…. Gary Fung. Had Mr. Fung been a little less enthusiastic a user of — and commentator on — his own sites, this might have played out a bit differently. Unfortunately for Fung, the Court was able to rely on Fung’s own words and actions to conclude that he was liable for copyright infringement.
As the Court noted in the decision issued last Thursday: “The record is replete with instances of Fung responding 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 decision includes a footnote conceding that Fung did take an active role in keeping certain kinds of torrents off of his sites — but far from being an observation that helps Fung, it’s one which demonstrates, despite Fung’s protestations to the contrary, that he did have the ability to keep specific types of content from being indexed by IsoHunt.
“Fung did attempt to keep certain types of torrents off his websites,” the Court wrote in the decision’s 15th footnote. “First, because Fung is personally opposed to pornography, he took steps to keep torrent files related to pornography out of his sites’ collections. Second, Fung attempted to remove torrent files that led to downloads of fake or corrupted content files. These efforts were not directed at ‘diminish[ing] the infringing activity’ taking place…. and so are not pertinent to the inducement inquiry (except to show that Fung had the means to filter content on his websites when he chose to do so).”
In a statement released Thursday, the MPAA hailed the ruling as “an important step toward realizing the enormous potential of the Internet as a platform for legitimate commerce and job creation — including millions of workers in the creative industries.”
Fung’s lawyers aren’t ready to concede just yet, though; Ira Rothken says the case needs to be heard by a jury, and he’s going to request an en banc rehearing to request such.