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Services involved in and promoted for use in a process of reproducing copyrighted material may give rise to contributory infringement even if no product is provided to actual infringers.

Opinion (BERZON): Gary Fung (“Fung”) operates several torrent sites that do not host copyrighted works, but allow users to download torrents (pieces of the same file from multiple sources). Columbia Pictures (“Columbia”) filed suit alleging that Fung was liable for contributory and vicarious infringement of Columbia‘s copyrighted works. The district court granted Columbia’s motion for summary judgment and granted a permanent injunction directing Fung to implement practices designed to eliminate Columbia’s copyrighted works from Fung’s torrent indexes. Fung appealed. The court found that the permanent injunction was overly vague and burdensome because the order did not make clear what preventative methods Fung was required to implement to purge copyrighted Columbia works from Fung’s indexes, what sites Fung was prohibited from harvesting torrent files from, or what ‘user bases’ Fung was prohibited from advertising for. The Court therefore modified the injunction to clarify Fung’s duties under the injunction. Relying upon the Supreme Court’s decision in MGM v. Grokster, Ltd., 545 U.S. 913 (2005), the Court further found that, though Fung did not distribute a product, he did purposefully provide a service that involved reproducing copyrighted material, which made him vicariously liable for copyright infringement. Fung furthermore promoted the use of his process for copyright infringement by inviting his users to make available copyrighted files for torrent downloads. Because no statutory safe haven provisions applied to Fung’s activities, the court AFFIRMED that the district court’s grant of summary judgment.