This is a legal document, specifically an affidavit, filed by Gary Fung, owner of the IsoHunt Website (www.isohunt.com), in the Supreme Court of British Columbia in Canada, on September 5, 2008. After receiving a letter from the Canadian equivalent of RIAA, the CRIA, stating that the IsoHunt website is responsible for copyright infringement and furthermore that Gary Fung must take appropriate action to make sure that the site is deactivated, in other words a cease and desist request. In response Gary Fung filed this document for the purpose of having his rights clarified by the Supreme Court of British Columbia, which will in effect make it easier for Fung in later legal proceedings in regards to CRIA claims. In the document, Fung essentially reveals the nature and purpose of the IsoHunt Website. He explains why it exists, how it operates, and the content that it hosts. He makes it known that the site is essentially a search engine "similar to Google, Yahoo, Windows Live, etc." which exists for the purpose of making the search for dot-torrent files easier for users. He also explains that a user can essentially use Google and obtain similar results that can be obtained on the IsoHunt Website. Furthermore he makes it clear that no "content" is actually hosted by the website but just links to the torrent files are indexed. He also explains what are torrents and the BitTorrent p2p protocol that allow them to operate. He also makes it known that the Website is in no way affiliated with the BitTorrent protocol, the torrents, or the various software needed to download/create the said torrents.Lastly, Fung included eight supporting documents with his Affidavit one of which is a copy of the letter that he recieved from CRIA.
This source is important to my research project in many ways. First, it is a primary source from the owner of the IsoHunt website, the legality of which is in question by my research. Also it is a very recent source, which is very important in addressing the issue of copyright infringement by filesharing websites. It will be crucial in establishing the key differences and/or similarities between the technology this site uses and previous shut down sites such as Grokster and Napster. Further, the document also raises a complicating issue, that Google search engine technology functions in a similar fashion which implies that if one is not allowed to exist than how can the other be allowed to. The document also illustrates the DMCA Takedown provision in action, which in a way complicate my argument further, since Gary Fung does have all the necessary provisions of the DMCA addressed. Another reason why this is a valueable source for my research is that one of the attached documents is a copy of the letter from CRIA Fung recieved, which will be helpful since it exposes the vew shared by CRIA. Over all this is a valuable primary source that will prove to be valuable in my research.
This is essentially the plaintiffs' (Columbia Pictures' et. al.) memorandum of Points and Authorities in Support of Summary Judgement on Liability. Essentially it captures the main arguments of the plaintiffs in Columbia Pictures v. Gary Fung (IsoHunt), a recent development in the bittorrent context. Essentially the plaintiffs claim that the whole purpose of the "Fung websites" is to facilitate and provide users with the ability to search for ".torrent" files which link to trackers hosted on various computers and servers that contain actual content files like movies, etc. Also, plaintiffs maintain that "torrent" files in themselves have no purpose but to link to actual content files. The plaintiffs say that there had been done an "unrebutted" statistical study which showed that "95%" of all the torrents on the "other fung sites", which work hand-in-hand with the main IsoHunt site, are links to copyrighted material. Also important, is the plaintiffs counter to the defendant's (Gary Fung) claim that the Grokster case doesn't apply because unlike in the Groster case IsoHunt does not distribute any product. The plaintiffs' argument is that this claim is invalid because the Grokster case had nothing to do with it being a product as opposed to a service, but rather the fact that the Grokster "induced and promoted" active infringement which thus made Grokster liable for contributory infringement.
This document is crucial to my research paper. It is the only recent legal document, and at the same time a primary source, directly related to my research thesis of whether government can/should shut down sites like www.IsoHunt.com. I plan to use virtually all of the arguments presented by the plaintiffs in my research paper. By weighing these arguments with various other sources (copyright law, DMCA, Grokster case, Fung's Affidavit) I'll be able to reach some kind of a conclusion in regards to my thesis.
This is a publication by The Harvard Journal of Law and Technology, which explains and discusses the two theories of indirect copyright infringement liability: Contributory infringement and Vicarious infringement at the same time offering an economic perspective. Contributory infringement is when a company that produces a product or service is liable for indirect infringement as a result of a third party user committing infringement by using the product or service. Vicarious infringement has to do with an employee committing infringement and the employer is then liable for that infringement because he had "knowledge" of that infringement. Throughout the article, the authors make use of two examples illustrating two extremes: a flea market example, in which a property owner provides a service to individual sellers, and some of these seller sell copyrighted material; and a photocopier example, in which the use of the copier can have both infringing uses and legitimate ones. The article also discusses several important issues surrounding these two theories, such as the Sony v. Universal case, the napster case, and the DMCA law. It provides analysis on why the court rejected Napster's claim that it was "only a service like the VCR." Essentially, the artical says that Napster could have prevented the copyright infringement without harming the legitimate uses. Ultimately the article makes the conclusion that "every mechanism for rewarding authors inevitably introduces some form of inefficiency, and thus the only way to determine the proper scope for indirect liability is to weigh its costs and benefits against the costs and benefits associated with other plausible mechanisms for rewarding authors."
This is a very valuable source for my research paper for a number of reasons. Many site operators such as Gary Fung (owner of www.IsoHunt.com), claim that they are only providing a "service" like the "sony VCR". The article provides valuable analysis of the napster case, specifically that the court said that even though napster provided a "service" if it had "knowledge" and "could effectively prevent" copyright infringement it is liable for indirect infringement. I plan to utilize this point in favor of my argument that government, specifically the judicial branch, can shut down sites like isoHunt if it proves them to be indirectly liable for copyright infringement. The artical is also important for my research paper because it raises issues such as that "the costs in terms of unavoidable interference with legitimate products might be too high, and society would therefore be better off forcing copyright holders to rely on other mechanisms."
This is a publication by the Virginia Law Review. The section focused upon for the purpose of my research paper is section C: The Kazaa era: 2001 - present. The article provides some unbiased description of the two technologies FastTrack and Gnutella. It focuses on some of the key developments in the filesharing domain after napster specifically the kazaa network. It explains how the technology descriminates between fast connections and slow connections. The article also addresses the issue how lately there appeared an effort by filesharing technology developers to write code that would reflect the copyright law. In the sense that the technology worked in such away as it is hard to place the blame on the developers. It also raises the point that the more files there being shared the better it is for the network performance and in essence for the developer. The other part of the article addresses how the music industries made every effort to stress the similarity between napster and kazaa and the other FastTrack networks. The article goes on to make reference to the Mgm v. Grokster case. Specifically it provides insight to how these technologies may have won out against the recording industries. The article quotes Judge Wilson, who presided over the Grokster case in the ninth district appeals court. The judge said essentially that if the companies were shut down, the users of the network(s) would still be able to do what they were doing.
This article is important for my research paper because it provides basis for an important analysis. For example, it was later seen that the movie industry in fact did win in the supreme court (see Mgm v. Grokster source). So although Judge Wilson ruled in favor of Grokster by saying that the technology was not similar to napster and that even if the company was shut down the users of the software would still be able to do what they were doing, it was later seen in the supreme court that Grokster actually lost. Today it is known that IsoHunt and the like are being sued and so if it is somehow possible to establish the similarity between IsoHunt and Grokster the same strategy may be applied to get IsoHunt shut down. The article also raises a few other important points such as that these networks continue to operate as long as there is more and more content being shared.
This is a publication by the Ifo Institute for Economic Research located in Munich. The authors are Martin Peitz and Patrick Waelbroeck. Essentially this is a detailed economic analysis of various models concerning the effects of digital copying and secifically pirated digital copies. The paper specifically looks at filesharing networks and analyzes the economic impact. The authors analyze the common claim by record industries and "affected" industries, that unauthorized copying leads to lost profits. The authors present various articles by other reputable sources, and provide analyses of them. In some situations firms do indeed lose profits either directly attributable to piracy or indirectly. However, the publication also cites situations under which digital copies actually increase firms' profits and social benefit all together. Among other things, the paper also provides specific examples of types of goods and state whether producers of these goods benefit from digital copies.
This source is very important to my research in a number of ways. It provides a third party outlook on the impact of unauthorized digital copies. While some of the issues raised by this publication complicate my research paper, the publication does provide some analyses which provide support for my thesis that government should suspend sites that host/index unauthorized copies of copyrighted content. For example, it mentions that in a certain setup firms do suffer from the existence of copies. Also it talks about how copies limit the monopoly-power of the firm, which in the long run detracts both from the producer surplus and the social surplus as a whole. Careful consideration and analysis of this source will help address my thesis question more fully.
This is a summary of the Digital Millennium Copyright Act of 1998 released by the Copyright Office. The DMCA was signed into law by President Bill Clinton. It is divided into five titles.
- Title 1: WIPO TREATY IMPLEMENTATION implements the WIPO treaties. The title makes several technical amendments regarding national eligibility, restoration of copyright protection and registration as a prerequisite to suit. Although the title provides exceptions, the title essentially prohibits the production/services of copyright-protection circumvention tools. Further it prohibits the distribution of such tools/services.
- Title 2: ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION. The title essentially provides a safe-harbor for online service providers as long as they meet certain provisions of the title. It establishes for classes of online services: transitory communictations, system caching, storage of information on systems or networks at the direction of users, and information location tools. In general as long as a service provider does not have requisite knowledge of infringing material, does not recieve financial gain attributable to infringing activity, and further more once the service provider is notified of infringing material it must act fast to take down or block access to such material.
- Title 3: Computer Maintenaince or Repair. This title basically says that an owner of a computer or a lessee doing maintenance or repair on the computer is excempt from copyright infringement if a situation arrises during which one must make a copy of a program for back up purposes. However the original copy must have been lawfully owned and further once all repair/maintenance has been finished the back up copy must be destroyed.
- Title 4: MISCELANIOUS PROVISIONS. This title further clarifies certain existing provisons and implements new ones regarding broadcast excemptions, library and archive excemptions among other things.
- Title 5: PROTECTION OF CERTAIN ORIGINAL DESIGNS. This title primarily deals with the protection of vessel hull designs.
This source is very valuable for my reseach paper. Specifically Titles 1 and 2 are going to be analyzed and used in my research paper. Title 1 is important in 1 crucial way. Although it may be a leap, in the sense of a legal court room, but I believe that the following analysis can be seen valid. IsoHunt and other similar websites link to/index .torrent files that allow users to download ISOs. ISOs are images of original CDs or DVDs. Now given that the DMCA prohibits the circumvention of encrypted DVDs, and other content such as software, these ISOs are illegal according to Title 1 of the DMCA. IsoHunt and other similar websites allow users to search for and download such ISOs. The title of the website itself: "IsoHunt" suggests that the primary purpose of it is to "hunt" for "Iso"s. Title 2 is important for my paper because site operators such as Gary Fung (see affidavit no.1) often claim that as long as they follow the safe harbor provisions established by Title 2 of the DMCA, they may not be held liable for contributory infringement. Thus in my research paper I plan to make careful analyses of both these safe-harbor provisions and the claims of site operators. Title 2 is also important because many other important sources that will be used directly deal with this title.
This is the U.S. copyright law chapter 1 which deals on the subject matter and scope of Copyright. For the purpose of my research paper only section 106 is going to be focused upon.
Section 106, essentially outlines what exclusive rights copyright owners have. The main three rights it outlnes are the rights to make copies, to make derivitive works, and the right to distribute copies/works. Also the section addresses the rights of copyright owners involving motion pictures, audiovisuals, dramatic, and choreographic works. Essentially the section says that only the copyright owner has the exclusive right to perform or display the work publically. Lastly the section states that only the copyright owner can perform a work digitally.
Section 106 is important for my research paper because in order to determine whether copyright infringement was committed one needs to know what constitutes copyright infringement. Since there is no explicit clause in the constitution pertaining to file-sharing infringement a careful analysis of this section needs to be done. Section 106 provides the legal basis for the argument that when a user downloads a copyrighted work he essentially copies it; similarly when a user uploads a copyrighted work he essentially distributes it. Thus using/promoting a file-sharing technology to download/upload copyrighted material is infringing on the rights of copyright owners established by section 106.
This is a chapter from the U.S. code pertaining to copyright. For the purpose of my research paper only sections 502 & 504 are being focused on.
Section 502 deals with remedies for copyright infringement, specifically injunctions, and is subdivided into two parts. The first one makes it legal for courts to "grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright." This can be interpreted that courts may rule however is necessarry and within power in order to prevent occurrences of copyright infringement. The second part of section 502 says that any court in the United States, having jurisdiction of the relevant parties, may serve any injunction as described in part a. It also says that once an injunction is served it shall be operative in and shall be enforceable by the United States.
Section 504 deals with damages and profits stemming from copyright infringement. Essentially it provides the legal grounds for an infringer to be financially liable for the copyright owner's actual damages and any additional profits made by the infringer, attributable to the copyrighted work.
These pieces of law are important for my research because they provide the legal grounds for a government or appropriate agencies to go after copyright infringers. Furthermore they provide legal grounds for any theory of indirect liability for infringement; specifically in those cases when an online service provider such as IsoHunt makes profit in the form of advertisement revenue much of which can be attributed to the popularity of copyrighted content found using the service.
This is the Supreme Court Opinion regarding the MGM et al v. Grokster et al case. The opinion of the court was delivered by Justice Sutter. Essentially what happened was that the decision made by the United States Court of Appeals for the Ninth Circuit was reversed. The question raised before the court was "under what circumstances the distributor of a product capable of both lawful and unlawful use is liable for acts of copyright infringement by third parties using the product." According to the court, there was an error made by the Ninth Circuit Court, in its interpretation of Sony v. Universal City Studios. "The Ninth Circuit has read Sony’s limitation to mean that whenever a product is capable of substantial lawful use, the producer can never be held contributorily liable for third parties’ infringing use of it..." This document includes a description, gathered in the process of litigation, of how the Grokster and StreamCast products worked what technologies they used (Gnutella and FastTrack) and more importantly how the products were used by their users. It is made known that although the products have legitimate uses "90%" are copyright infringement uses. Another important point made by the document is that both Grokster and StreamCast profitted from advertisements that users would see while using the product. Furthermore, it is made known that "the business models employed by Grokster and StreamCast confirm that their principal object was use of their software to download copyrighted works." The decision of MGM v. Grokster essentially made the precedent that the Sony v. Universal decision doesn't leave service providers such as Grokster and StreamCast unliable for copyright infringement made by third parties using their product.
This source is very valuable for my research paper because it is one of the only cases dealing directly with the issue of p2p filesharing. Furthermore it provides support for my contention that government can and should shut down websites involved with/enabling copyright infringement. Many of such service providers use the Sony v. Universal case as defense against being liable for copyright infringement stemming from the use of their service by third party users. This case set a precedent to how future cases involving filesharing and copyright infringement cases are going to be handled in the future. Also, many of the current websites being targeted by the MPAA and RIAA and other agencies, whether in the U.S. or elsewhere, including www.IsoHunt.com among others, function in similar ways as Grokster and StreamCast did. Therefore if Grokster and StreamCast were found liable by the Supreme Court in this case, some of the strategies/analyses from this case can be used to shut down other sites such as IsoHunt.
This is a news article reporting on the recent developments in the campaign against copyright infringement. Specifically it reports on the recent development surrounding isoHunt. Essentially it makes it known that IsoHunt is using the claim that it's "only a search engine" as a defense against copyright infringement. It also makes reference to how the IsoHunt website functions as claimed by Gary Fung, the owner and developer of the website technology (see Affidavit no. 1). The article also exposes the MPAA's strategy in accusing IsoHunt and the like in copyright infringement. According to the artical the MPAA is heavily relying on the MGM v Grokster case. Lastly the artical also provides some significant issues raised by the on-going case. One is that it will probably be difficult for IsoHunt to prove to the judge that the IsoHunt website behaves like Google or Yahoo or any other search engine. It also raises an important point in regards that once settled this case could affect the fate of the whole internet structure specifically for search engines and the filesharing community.
The article is important for my research paper because it is the only article out of those that I looked at that covers the developments of the MPAA v. IsoHunt case in an unbiased way. Furthermore, since there is no official court transcript available as the case is still in progress any recent developments are important for my research paper. Further it provides one significant insight that IsoHunt does not behave in the same way as any other search engine in the sense that google and the like is data-agnostic but isoHunt links to specific type of content. I plan to quote this directly in my paper.