US Court of Appeals Upholds Finding of Copyright Infringement Against Canadian-based Torrent Site isoHunt

On March 21, 2013, the US Court of Appeals for the Ninth Circuit (Ninth Circuit) upheld summary judgment against Canadian-based company isoHunt Web Technologies Inc (isoHunt), finding the operator of several torrent indexing web sites liable for inducing infringement of copyrighted works. isoHunt operates web sites that provide searchable archives of torrent files to online users for download. The torrent files themselves do not contain the pirated movies, TV shows or music that infringe copyright; rather, they comprise a set of instructions for locating and downloading the infringing content in small pieces from numerous peers who have the file. As a result, it is the individual users who would infringe copyright directly by uploading or downloading pirated works using their associated torrents. However, elaborating on the doctrine of inducement, the Ninth Circuit upheld the finding of liability against isoHunt based on its operation of a service aimed at promoting copyright infringement as shown by clear expression or other affirmative steps. Though torrents can equally be used to distribute non-infringing content, isoHunt was found to actively solicit the upload of torrents concerning copyrighted works and thus promote copyright infringement. Notably, the solicitation by isoHunt was for torrent files to be uploaded which, by itself, is non-infringing content. The view of the Ninth Circuit was unwavering: “if one provides 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.” The Ninth Circuit also upheld the finding that none of the “safe harbour” defences claimed by isoHunt and provided under the Digital Millennium Copyright Act, (DMCA) 17 USC § 512, were applicable. While certain DMCA provisions might shield an inducement claim in another case, their application to isoHunt failed because the defendant had actual, “red flag” knowledge of a specific infringement. That “red flag” knowledge arose from being “subjectively aware of facts that would have made the specific infringement ‘objectively’ obvious to a reasonable person.” isoHunt continues its legal battles in other jurisdictions, including Canada, where the Copyright Act was recently fortified with the new section 27(2.3) providing that an online provider of a service will be liable for copyright infringement if the primary purpose of the service is to enable the infringement of copyright, and an actual infringement occurs by means of the Internet (or another digital network) as a result. Although the Canadian provision does not specifically require the US equivalent of actual or “red flag” knowledge, it is a factor the court may consider in determining the issue of infringement. Summary by: John Lucas