Tag Archives: grokster

Can a website be liable for linking to infringing content?

Gawker facing Grokster-like challenge in suit by Quentin Tarantino over leaked script.

gawksterThe Hollywood Reporter has covered Quentin Tarantino’s copyright infringement lawsuit against Gawker for publishing links to leaked copies of the script of a yet-to-be-made Tarantino film. The complaint alleges that certain anonymous defendants are directly liable for infringement for uploading the script, and that Gawker is secondarily liable for the infringement.

Going after Gawker that way makes sense, because the site cannot be directly liable for infringement if it did not exploit any of Tarantino’s exclusive rights under Section 106 of the Copyright Act, viz.: the right to copy, distribute, publicly perform, publicly display, or make a derivative work.

None of those rights are implicated by simply publishing a link. So if Gawker is shown to be liable for copyright infringement, it will have to be derived from the direct infringement of the parties who uploaded the content, and/or the infringement occasioned by Gawker users who download the script.

These facts call for an analysis under the Supreme Court’s 2005 Grokster decision, which held that:

[O]ne 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.

The Grokster analysis gets some color in the Ninth Circuit (Tarantino’s suit is pending in federal court in California) in the 2013 case of Columbia Pictures v. Fung (the Isohunt case). In that case, the appellate court held that Isohunt was secondarily liable for the infringement occasioned by its users under the Grokster analysis. Like Gawker, Isohunt’s conduct did not implicate any of the plaintiffs’ Section 106 rights. Instead, its liability was premised on the conduct it undertook to direct users to the acquisition of infringing content.

Gawker is of course no stranger to controversy. Just last week we covered a Florida case dealing with Gawker’s First Amendment rights to publish excerpts of the Hulk Hogan sex tape. This bold move of publishing provocatively certainly continues that trend. But this time that move could face some serious Grokster-like consequences.

BitTorrent site liable for Grokster style inducement of copyright infringement

Columbia Pictures v. Fung, No. 06-5578 (C.D. Cal. December 21, 2009).

This case came out three weeks ago, but it’s pretty significant and hasn’t gotten the coverage and analysis it deserves. Of course Professor Goldman covered it in a timely manner. But his blogging agility surpasses that of us mere mortals.

Fung and his company Isohunt Web Technolgies ran a number of popular BitTorrent sites where users could find and share torrent files that permitted the downloading of video files. [Here's how BitTorrent works.] Several Hollywood studios sued Fung and his company for copyright infringement over the operation of the sites and the activites of the sites’ users.

Ostriches don't actually put their head in the sand

The plaintiffs moved for summary judgment on the copyright claims. The court granted the motion.

The court based its ruling on a theory of “secondary liability” — that is, Fung and his company were liable for the copyright infringement (i.e., the distribution of copyrighted movies and TV shows) committed by users of the sites. More specifically, the court held that the defendants induced copyright infringement, citing to the 2005 U.S. Supreme Court decision in MGM v. Grokster.

The defendants’ inducement of copyright infringement

Under Grokster, “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.”

In this case, the court found numerous ways that the defendants had induced copyright infringement. Among the defendants’ activities that gave rise to secondary liability were:

  • Providing categories on the sites to assist users in locating and downloading currently-popular movies, and making express statements to third parties to encourage copyright infringement
  • Providing technical support to users who desired to download and view copyrighted materials.
  • Implementing technical features (such as crawling The Pirate Bay) to locate copyrighted material
  • Relying on an advertising based business model that benefitted from high volume traffic drawn by the availability of infringing material

Rejection of the defendants’ DMCA affirmative defense

The court rejected the defendants’ argument that the safe harbors of the Digital Millennium Copyright Act (DMCA) should shield the torrent sites form liability.

A service provider can sail its ship into a DMCA safe harbor if, among other things, it does not have actual knowledge of, or is not willfully blind to, infringing activities being undertaken through its system. Said another way, the limitation of liability afforded by the DMCA is lost if the provider becomes aware of a “red flag” from which infringing activity is apparent.

The court found that the defendants did not qualify for safe harbor protection because of the “overwhelming” evidence that the defendants knew of the infringing activity. The court borrowed from the Aimster case to state that the defendants would not have known of the infringement only if they engaged in an “ostrich-like refusal” to observe what was happening. That willful blindess would not serve as an excuse.

Ostrich photo courtesy of Flickr user Pedronet under this Creative Commons license.