expression or affirmative steps” is not a separate requirement, but rather, an explanation of how
the improper object must be proved. The court accordingly concluded that Grokster requires a
high degree of proof of the improper object. The improper object must be plain and must be
affirmatively communicated through words or actions. Here, there was ample evidence of clear
expression or other affirmative steps of unlawful intent, the most important being Fung’s active
encouragement of the uploading of torrent files concerning copyrighted content. For a time, one
of Fung’s sites, IsoHunt, prominently featured a list of “Box Office Movies,” containing the 20
highest-grossing movies then playing in U.S. theaters. When a user clicked on a listed title, the
user would be invited to upload a torrent file for that movie. Fung also posted numerous
messages to the IsoHunt forum requesting that users upload torrents for specific copyrighted
films; in other posts, he provided links to torrent files for copyrighted movies, urging users to
download them. In addition, he responded personally to numerous queries for assistance in
uploading torrent files corresponding to obviously copyrighted material, finding particular
copyrighted movies and television shows, getting pirated material to play properly, and burning
the infringing content onto DVDs for playback on televisions.^2212
Two types of evidence, insufficient in themselves, corroborated the conclusion that Fung
acted with a purpose to cause copyright violations by the use of his services. First, he took no
steps to develop filtering tools or other mechanisms to diminish the infringing activity by those
using his services. Second, he generated revenue almost exclusively by selling advertising space
on his web sites. Because the extent of use of the services determined the gain to Fung, the
commercial sense of his business turned on high-volume use, which the record showed was
infringing.^2213
With respect to element (4) – causation – the parties argued competing positions. Fung
and amicus curiae Google argued that the acts of infringement must be caused by the
manifestations of the distributor’s improper object – that is, by the inducing messages
themselves. The plaintiffs argued for a low standard of causation, insisting that they need prove
only that the acts of infringement by third parties were caused by the product distributed or
services provided. The court adopted the low standard of causation argued by the plaintiffs,
ruling that 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.^2214
The court went on, however, to state that is was mindful of the potential severity of a
loose causation theory for inducement liability. Under this theory of liability, the only causation
requirement is that the product or service at issue was used to infringe the plaintiff’s copyrights.
The court noted that the possible reach of liability is enormous, particularly in the digital age,
(^2212) Id. at 1035-36. In a footnote the court noted that it was not relying on the generic organizational structure of
Fung’s web sites – i.e., that they organized files in browsable categories or used an automated indexing program
that matched filenames with specific terms. The court said that those features did not themselves send the type
of inducing message that would be adequate to prove an unlawful intent. Id. at 1036 n.13.
(^2213) Id. at 1036.
(^2214) Id. at 1037.