Another recent 9th Circuit Court of Appeals case addressed contributory copyright infringement, in this case under the theory of inducement. Here, the Plaintiff movie studios sued the Defendant for maintaining websites that induced third parties to download infringing copies of the studios copyrighted works. The Federal District Court granted an injunction at the Summary Judgment hearing from which the Defendant appealed. The Defendant’s torrent sites (Sites cooperating with the BitTorrent programs of users) appealed to illegal movie traffickers by not only permitting users to browse in and search their collections, but by modifying the torrent file adding additional trackers that made it more likely that the user’s download would be successful. Defendant also operated various tracker sites that enabled this copying.
On appeal, The 9th Circuit affirmed the verdict in part finding that the Defendant’s activity induced infringement. In Columbia Pictures Industries v. Fung, the Court focuses on the history of devices capable of promoting mass infringement, but also capable of substantial non-infringing use such as the Sony Betamax recorder. The Sony device was found to have a substantially non-infringing use under the “staple article of commerce doctrine.” However, devices that promote assist or otherwise encourage infringement through P2P, (peer to peer networks) or hybrids thereof have been found to induce infringement. The U.S. Supreme Court articulated an inducement rule providing that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. This inducement principle has four elements (1) the distribution of a device or product, (2) acts of infringement, (3) an object of promoting its use to infringe copyright, and (4) causation. The Defendant argued that he did not develop or distribute any “device” that is the software or technology used for downloading, as he did not provide the client programs to download the media products, or the BitTorrent protocol.
The Court did not agree likening his argument to the owner of a retail copying service that copies copyrighted materials for customers after broadly promoting its willingness to do so, stating that such “liability depends on one’s purposeful involvement in the process of reproducing copyrighted material, not the precise nature of that involvement.” So although Defendant’s technology may have enabled the more efficient sharing of permission based videos and pictures, his object was to enable infringers to score illegal movies. Whether it’s the swap meet, copy store, or internet, one whose conduct knowingly encourages copyright infringement by third parties may be found liable of contributory copyright infringement.
William Tennant 