Advanced Copyright Law on the Internet

services were scrutinized and shut down for copyright infringement, it would make the way for
Usenet to “get back in the game.”^2193 The defendants also used meta-tags such as “warez” and
“Kazaa” in the source code of their website to ensure that a search on a search engine for illegal
content would return their website as a result. The record was replete with evidence of the
defendants’ own employees overtly acknowledging the infringing purpose for which their
service was used and advertising such uses on their web site.^2194 The defendants’ employees
specifically provided technical assistance to users in obtaining copyrighted content and provided
web site tutorials on how to download content, using infringing works as examples. Other
evidence showed that, although the defendants had in place various tools and mechanisms that
could be used to block access to infringing articles or newsgroups, they never used them to limit
copyright infringement on their servers. Finally, the defendants’ graded subscription payment
plan caused users to pay more the more they downloaded. Accordingly, the court concluded that
the defendants’ intent to induce or foster infringement by its users on their services was
unmistakable.^2195

(c) Columbia Pictures v. Fung

The District Court Decision

In Columbia Pictures v. Fung,^2196 the defendants were operators of various sites that
facilitated file sharing using the BitTorrent protocol. In a BitTorrent network, rather than
downloading content files from an individual host, users of the network selected the content file
they wished to download and then downloaded it in pieces through an automated process from a
number of host computers (called a “swarm”) possessing the content (or portions of it)
simultaneously. Servers called “trackers” managed the download process from the multiple
hosts. The defendants’ sites (known as “torrent sites”) maintained indexes of files called “dot-
torrent files” that contained information identifying the various hosts where pieces of the desired
content were stored. Users could also upload dot-torrent files for use by others to locate desired
content. The dot-torrent files did not contain the actual content users were searching for (such as
a movie), but rather contained the data used by the BitTorrent client software on the user’s
computer to retrieve the content through a simultaneous peer-to-peer transfer from the multiple
hosts of the content.^2197

(^2193) Id. at 152.
(^2194) Id. For example, an employee commented that the tag line for the service should be “piracy, porno and pictures

• Usenet,” and another commented that “Usenet is full of Music and Movies so get your pirate on!”Id.

(^2195) Id. at 153-54.
(^2196) 2009 U.S. Dist. LEXIS 122661 (C.D. Cal. Dec. 21, 2009), aff’d, 710 F.3d 1020 (9th Cir. 2013).
(^2197) Id. at 8-11. “The dot-torrent file contains ‘hash’ values that are used to identify the various pieces of the
content file and the location of those pieces in the network. The BitTorrent client application then
simultaneously downloads the pieces of the content file from as many users as are available at the time of the
request, and then reassembles the content file on the requesting computer when the download is complete.” Id.
at 11-12.