Last week, the US Court of Appeals for the 5th Circuit released a controversial decision interpreting Section 1201(a) of the DMCA in MGE UPS Inc v GE Consumer and Industrial, Inc. 2010 WL 2820006 (5th Cir.2010). Prof. Geist has suggested that the case decided that the “DMCA is limited to guarding access controls only to the extent that circumvention would violate the copyright rights of the copyright owner.” His summary of the case is neither accurate nor complete. Here’s why.
The MGE case
Yesterday, District Court Judge Stephen Wilson issued an order permanently enjoining Ishount and Gary Fung from continuing to engage in copyright infringement. The Court found an injunction necessary because the plaintiffs “have demonstrated that they have suffered irreparable harm, and would suffer further irreparable harm from Defendants’ continued infringement”.
According to the Court, “Plaintiffs’ power to control their rights has been so compromised by the means through which [Defendants] encouraged end users to infringe (digital files plus the internet) that the inducement amounts to irreparable harm.” Further, “it is axiomatic that the availability of free infringing copies of Plaintiffs’ works through Defendants’ websites irreparably undermines the growing legitimate market for consumers to purchase access to the same works.”
LimeWire now joins the ignoble club of sites and services around the workd that have been found liable for inducing, contributing to, or authorizing massive online copyright infringement. Other well known sites and services found liable on these and other secondary liability or criminal theories include Napster, Aimster, Grokster, Kazaa, Pirate Bay, Mininova, Usenet.com, Newzbin, and Isohunt.
Courts around the world have not tolerated or been willing to countenance online businesses whose core business model involves profiting from facilitating online copyright infringement. The most recent example is LimeWire.
There has been some confusion over whether an injunction has issued yet in the US IsoHunt case. In short, an injunction has not yet issued against IsoHunt. However, US District court Judge Stephen Wilson issued a tentative order on March 23, 2010 ruling that a permanent injunction is going to be made against IsoHunt. A copy of the tentative judgment is available here.
The tentative order contains the judge’s ruling as to why the Court intends to grant a permanent injunction. In summary, the Court stated that
Last week the Federal Court of Australia released its important decision in the iiNet case. As many commentators have pointed out, the court declined to require Australia’s ISPs to disconnect those of its subscribers who are repeat copyright infringers.
In the course of reaching this decision, the court made a number of important rulings about the liability arising from the use of BitTorrent networks including the following:
When people think of unauthorized file sharing, they often focus on music, movies and TV programs, and software. Often forgotten is the magnitude of the illegal file sharing in the book publishing industry. A recent study published by Attributor documents what the Association of American Publishers calls an “Epidemic of Online Book Piracy”.
Earlier this week, a US district court granted summary judgement to MPAA members holding that Gary Fung and four websites operated by him, including Isohunt one of Canada’s largest bittorrent sites, contribute to massive worldwide copyright infringement.
Operators of bittorrent sites like isoHunt often claim they are nothing but content neutral search engines like Google. The Isohunt court disagreed holding, based on uncontested expert evidence, that approximately 95 percent of all files made accessible through Isohunt were infringing or highly likely to be infringing.
A U.S. district court has now issued a wide area injunction in the Sony BMG Music Entertainment v Tenenbaum case, 2009 WL 4723397 (D.Mass.Dec 7. 2009). The order is as follow:
“…defendant shall be, and hereby is, enjoined from directly or indirectly infringing plaintiffs’ rights under federal or state law in any sound recording, whether now in existence or later created, that is owned or controlled by plaintiffs (or any parent, subsidiary, or affiliate record label of plaintiffs) (“Plaintiffs’ Recordings”), including without limitation by using the Internet or any online media distribution system to reproduce or distribute any of Plaintiffs’ Recordings, except pursuant to a lawful license or with the express authority of plaintiffs. Defendant also shall destroy all copies of Plaintiffs’ Recordings that defendant has downloaded onto any computer hard drive or server without plaintiffs’ authorization and shall destroy all copies of those downloaded recordings transferred onto any physical medium or device in defendant’s possession, custody, or control.”
In August of this year a Dutch court ordered Mininova to remove all infringing torrents within three months. Yesterday, Mininova complied with the court’s order and disabled all torrents, except those in the licensed “content distribution” part of the service.
Mininova was the world’s second most popular unauthorized BitTorrent site. It facilitated infringement on a massive scale, with more than 10 billion downloads. Its demise follows Pirate Bay which was also ordered shut down following a decision by a Swedish court this past April which found Pirate Bay’s operators criminally responsible for copyright infringement.
A federal court has granted Microsoft Corporation default judgment against two PC Village businesses and two individuals associated with the businesses in an action for copyright and trade-mark infringement. Microsoft’s investigators had purchased computers from two separate PC Village locations. The judge found that one computer contained seven unauthorized Microsoft software programs, while the other had eight.
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