## Facts

- Movie and television studios sued Gary Fung and his company for operating torrent-related websites that indexed torrent files and helped users locate and obtain unauthorized copies of copyrighted works.
- The websites offered searchable indices, categorized torrent listings, and featured prominent lists (e.g., popular movies and television shows) that directed users to torrents associated with infringing content.
- Fung participated in site forums and communications, encouraged users to upload torrents for current popular works, and at times offered incentives to increase availability of copyrighted titles.
- The sites earned advertising revenue that increased with user traffic, which the studios argued was driven by access to infringing content.
- Users of the sites engaged in widespread direct infringement by downloading plaintiffs’ copyrighted films and television programs via torrents located through the sites.

## Issues

1. Whether Fung was liable for contributory copyright infringement under an inducement theory based on operating BitTorrent indexing and search websites.
2. Whether Fung qualified for DMCA safe-harbor protections under 17 U.S.C. § 512(a), § 512(c), or § 512(d) despite evidence of knowledge and site operation focused on infringement.
3. Whether portions of the permanent injunction were impermissibly vague under Fed. R. Civ. P. 65(d) or otherwise overly burdensome.

## Decision

- The Ninth Circuit affirmed summary judgment that Fung was liable for contributory copyright infringement under the inducement doctrine.
- The court held that operating and providing the indexing/search service could satisfy the “product or device” component of inducement, even though Fung did not create the BitTorrent protocol.
- The court found undisputed evidence of direct infringement by users and that Fung’s statements, site features, and conduct showed an objective of promoting infringing use.
- The court concluded that Fung’s indexing, categorization, and promotion made infringement easier and increased it, satisfying causation for inducement liability.
- The court affirmed denial of DMCA safe harbors under § 512(a), § 512(c), and § 512(d), based primarily on actual and “red flag” knowledge and failure to meet statutory conditions.
- The court vacated and modified parts of the permanent injunction as too vague or unduly burdensome, and remanded for entry of a revised injunction consistent with Rule 65(d).

## Legal Principles

- Inducement-based contributory infringement applies when a service is distributed or provided with the object of promoting infringement, third parties infringe, and the inducement conduct causes or materially contributes to the infringement.
- A service operator’s intent to induce infringement may be shown through affirmative encouragement, promotional statements, incentives, site design emphasizing infringing uses, and a business model tied to infringing traffic.
- Causation for inducement can be satisfied where the service’s indexing, search, and organizational features materially facilitate users’ ability to find and obtain infringing works.
- DMCA safe harbors under § 512(c) and § 512(d) require, among other conditions, lack of actual knowledge or “red flag” awareness of infringement (or expeditious disabling upon knowledge) and a reasonably implemented repeat-infringer policy.
- “Red flag” knowledge may be established where infringement is objectively apparent from the operator’s own communications and the service’s prominent focus on infringing content.
- A finding of inducement does not automatically bar DMCA safe-harbor eligibility as a categorical matter, but inducement-related facts may independently defeat the statutory requirements.
- Injunctions must state prohibited conduct with reasonable detail under Rule 65(d); vague or overly burdensome provisions are subject to vacatur or narrowing.

## Conclusion

The Ninth Circuit held that the operator of BitTorrent indexing and search websites was liable for inducement-based contributory infringement because his conduct and site features encouraged and facilitated widespread infringement, denied DMCA safe-harbor protection due to actual and red-flag knowledge and failure to satisfy statutory conditions, and required partial narrowing of an injunction that did not describe prohibited conduct with sufficient specificity.


Columbia Pictures Industries, Inc. v. Fung, 710 F.3d 1020 (9th Cir. 2013)