promotional page inviting users to upload torrent files for Matrix Reloaded, another recent film.
Also “warez” metatags were embedded in the sites for reference by search engines.^2202
- Defendants and their moderators gave assistance to users engaged in infringement:
Fung had personally posted messages in his site’s discussion forum in which he provided
technical assistance to users seeking copyrighted works. The sites were also full of statements
by moderators who assisted users seeking to download files or provided links to other sites
containing the requested infringing items. The court ruled that these moderators, who were
under the control of the defendants and had been given authority to moderate the forums and user
discussions, were agents of the defendants, and the defendants were therefore responsible for
their acts.^2203 - Defendants implemented technical features promoting copyright infringement:
Defendants’ sites allowed users to locate dot-torrent files for desired content, the vast majority of
which was infringing. Fung implemented a spider program that located and obtained copies of
dot-torrent files from other sites, including well known infringing sites such as “The Pirate
Bay.”^2204 - Defendants’ business model depended on massive infringing use: The court found
there no factual dispute that the availability of copyrighted material was a major draw for users
of Fung’s web sites, and there was no dispute that defendants derived revenue from the web site
and that this revenue increased along with the number of users.^2205
The court rejected the defendants’ assertions of the safe harbors under Sections 512(a)
and 512(d). The court ruled that, as a general proposition, “inducement liability and the Digital
Millennium Copyright Act safe harbors are inherently contradictory. Inducement liability is
based on active bad faith conduct aimed at promoting infringement; the statutory safe harbors are
based on passive good faith conduct aimed at operating a legitimate internet business. Here ...
Defendants are liable for inducement. There is no safe harbor for such conduct.”^2206
Five months later, the court entered a permanent injunction against the defendants,
enjoining them from, among other things, knowingly hosting, indexing, linking to, or otherwise
providing access to any Dot-torrent or similar files that correspond, point to or lead to any
copyrighted works owned by the plaintiffs and for which the plaintiffs had provided the title to
the defendants, on or through any web site, system or software using BitTorrent or any peer-to-
peer or other file-sharing or content delivery technology. The defendants were also enjoined
from providing technical assistance or support services to users engaged in infringement;
maintaining lists of “top” downloads that include the plaintiff’s copyrighted works; including in
(^2202) Id. at 39-43.
(^2203) Id. at 44-47.
(^2204) Id. at 51.
(^2205) Id. at 55.
(^2206) Id. at *67-68.