Accordingly, the court concluded that the plaintiffs must be awarded statutory damages of $750
per infringed work.^672
In Columbia Pictures Industries, Inc. v. Fung,^673 the district court ruled, in the context of
a BitTorrent site, that “uploading a copyrighted content file to other users (regardless of where
those users are located) violates the copyright holder’s § 106(3) distribution right.”^674 Because
of the nature of the BitTorrent protocol, users were not uploading the infringing content itself to
the defendants’ site, but rather were uploading dot-torrent files that contained only information
about hosts from which the infringing content could be downloaded using the BitTorrent
protocol. The dot-torrent files were indexed on the defendants’ site for searching. Thus, the
quoted language seems to implicitly hold that an actual distribution of infringing content is not
required to infringe the distribution right, since the mere upload of the dot-torrent file through
which the infringing content could be located was sufficient to infringe. In its opinion affirming
on appeal, the Ninth Circuit stated, “Both uploading and downloading copyrighted material are
infringing acts. The former violates the copyright holder’s right to distribution, the latter the
right to reproduction.”^675 The court immediately thereafter indicated awareness that the dot-
torrent files that were uploaded to Fung’s web sites did not contain the infringing content itself,
for the Ninth Circuit noted the plaintiff’s expert had averred that 90 to 96% of the content
“associated with” the torrent files available on Fung’s web sites was for confirmed or highly
likely copyright infringing material.^676
(2) Cases Holding That Mere Posting Is Not a DistributionIn Religious Technology Center v. Netcom On-Line Communication Services,^677 the
court refused to hold either an OSP or a BBS operator liable for violation of the public
distribution right based on the posting by an individual of infringing materials on the BBS. With
respect to the BBS, the court stated: “Only the subscriber should be liable for causing the
distribution of plaintiffs’ work, as the contributing actions of the BBS provider are automatic and
indiscriminate.”^678 With respect to the OSP, the court noted: “It would be especially
inappropriate to hold liable a service that acts more like a conduit, in other words, one that does
not itself keep an archive of files for more than a short duration.”^679
In In re Napster, Inc. Copyright Litigation,^680 the district court rejected the plaintiffs’
argument that Napster’s indexing of MP3 files that its users posted on the Napster network made
(^672) Id. at 199.
(^673) 2009 U.S. Dist. LEXIS 122661 (C.D. Cal. Dec. 21, 2009), aff’d, 710 F.3d 1020 ( 9 th Cir. 2013).
(^674) Id. at *29.
(^675) Columbia Pictures Industries, Inc. v. Fung, 710 F.3d 1020, 1034 (9th Cir. 2013).
(^676) Id.
(^677) 907 F. Supp. 1361, 1372 (N.D. Cal. 1995).
(^678) Id. at 1372.
(^679) Id.
(^680) 377 F. Supp. 2d 796 (N.D. Cal. 2005).