Of Isohunt, Youtube and Copyright Infringement

By: Roy M. Daguio, Jr. San Beda College of Law, Section 3F

During the 20th century, the field of science and technology was put on pedestal because of its innovative inventions from computers to beepers to automobiles and the like. Due to its importance, it can be said that one of the greatest inventions of the 20th century, if not of all time, is the development of the World Wide Web or most commonly known as the Internet.1 The advent of the virtual world paved way for the creation of websites that cater to the needs of its users, easier information dissemination and faster file sharing. However, the Internet has also caused adverse effects and one of those is its impact on copyright laws. In fact, the Internet has been tagged as the the worlds biggest copy machine because through the Internet, one can make an unlimited number of copies, virtually instantaneously, without perceptible degradation in quality.2 There are several service providers that foster file sharing such as isohunt, hotfile and youtube. In recent cases, American courts have ruled that hotfile3 and isohunt4 are guilty of copyright infringement. This paper then aims to assess whether the rationale for holding isohunt liable for copyright infringement may be used to proclaim that youtube also violate copyright laws.

Barry M. Leiner, et. al., Brief History of the Internet, n.d., http://www.internetsociety.org/internet/whatinternet/history-internet/brief-history-internet (October 2013). 2 The Impact of the Internet on Intellectual Property Law, n.d., http://www.wipo.int/copyright/en/ecommerce/ip_survey/chap3.html (October 2013). 3 John Eggerton, MPAA: Hotfile Found Liable for Copyright Infringement, August 28, 2013, http://www.broadcastingcable.com/article/495235MPAA_Hotfile_Found_Liable_for_Copyright_Infringement.php, (October 2013). 4 Columbia Pictures v. Gary Fung, D.C. No. 2:06-cv-05578-SVW-JC, March 21, 2013.

YOUTUBE AND ITS VIDEOS Youtube was launched by PayPal employees in February 2005. It is undeniably one of the most visited websites because users upload videos and youtube enables other people to watch all these videos for free. It has also formed partnerships with major televisions studios so that the videos of the latter will be streamed in the website.5 To determine whether youtube infringes copyright laws, it is proper to discuss first the court decisions declaring hotfile and isohunt guilty of copyright infringement.

COLUMBIA PICTURES V. GARY FUNG Isohunt is a torrent website. It collects several torrents which may either be ebooks, movies, audios, games, applications and programs. Users may browse the site and download torrents for free. Each time a torrent file is added to isoHunt, the website automatically modifies the torrent file by adding additional backup trackers to it. That way, if the primary tracker is down, the users BitTorrent client program will contact the backup trackers, making it more likely that the user will be successful in downloading the content sought. In other words, isoHunt alters the torrent files it hosts, making them more reliable than when they are uploaded to the site. Given this factual milieu, the United States Court of Appeals ruled that isohunt is guilty of copyright infringement citing the inducement theory laid down in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd.6 The inducement theory has four elements which are:
5

Jonathan Strickland, How Youtube Works, n.d. http://money.howstuffworks.com/youtube.htm (October 2013). 6 545 U.S. 913, 2005.

(1) the distribution of a device or product; (2) acts of infringement; (3) an object of promoting its use to infringe copyright; and (4) causation.7

YOUTUBE IS NOT GUILTY OF COPYRIGHT INFRINGEMENT Following the raison d etre of the United States Court of Appeals, youtube cannot be proclaimed copyright infringer because of lack of two elements of the inducement theory and because of youtubes mechanism that safeguards rights of the owner to their copyrights. The element of distribution of a device or product is not present in youtube and the element of causation are lacking. It is true that in order to prove the element of causation, it is only necessary to prove that the acts of infringement by third parties were caused by the product distributed or services provided. However, the US Court of Appeals laid down three guidelines in assessing the element of causation which are: (1) mere knowledge of infringing potential or of actual infringing uses does not subject a product distributor or service provider to liability, (2) when dealing with a corporate entity defendant, liability cannot be premised on stray or unauthorized statements that cannot fairly imputed to the entity and (3) proving that an entity had an unlawful purpose at a particular time in providing a product or service does not infinitely expand its liability both forward and backward in time. These elements are lacking because in youtube, unlike isohunt, users cannot directly download videos from the website. The site only offers
7

Columbia Pictures v. Fung, supra.

online viewing. Since youtube disallow downloading of videos, there is no distribution to begin with. The users do not get their copy of the videos. Hence, there is no mass production of these copyrighted materials.8 But the most important reason why youtube cannot be held liable for copyright infringements is the presence of mechanism that allows copyright owners to remove videos that infringe their rights and this is called the Content ID.9 Through this system, youtube allows rights holders to identify content that is comprised partially or entirely of their content and the said content may be removed upon request of the rights holders.

CRITIQUE In the case of isohunt, it can be inferred that the laws on copyright punish any site or services that fail to develop tools to filter out copyrighted content and operate on an ad-supported model are likely to be found liable for copyright infringement.10 I humbly submit that the defense of presence of mechanism that filter out copyrighted content may be abused in order to escape liability. I pose the question, had isohunt put a system similar to Content ID, will the ruling be different? Moreover, I suggest that courts should review what copyright laws really punish. Is it just the act of distribution? Should it not cover allowing other to use the copyrighted material just like in youtube?
8

New Infographic: How Video Data Travels From a Phone to YouTube to a Laptop , n.d., http://www.twcableuntangled.com/2010/09/new-infographic-how-video-data-travels-from-a-phone-toyoutube-to-a-laptop/, (October 2013).
9

How Youtube Fights Copyright Infringement, n.d., http://mashable.com/2012/02/17/youtube-content-idfaq/ (October 2013).

10

Simon Pulman, Columbia Pictures Industries v. Fung: IsoHunt Found Liable for Contributory Infringement, April 9, 2013, http://www.cdas.com/legal/isohunt/ (October 2013).