Court: Foreign Torrent Site Operator Can Be Sued in the US

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The Pakistani operator of popular torrent site MKVCage can be held personally liable for contributory copyright infringement in the US. The case in question was filed by the makers of the film Hellboy. US District Court Judge Seabright concludes that the use of US-based services invokes jurisdiction, even though a magistrate judge concluded otherwise.

hellboyIn 2019, the makers of the superhero film “Hellboy” (HB Productions) filed a lawsuit against torrent site MKVCage at a Hawaii federal court.

The movie company accused the site and its operator of promoting and distributing pirated copies of the movie, demanding to put an end to the activity.

The lawsuit had an almost immediate effect as MKVCage became unreachable soon after the case went public. At the same time, the uploader stopped pushing torrents to other sites as well. This meant that part of the plan had succeeded, but HB Productions wanted more.

Hellboy Demanded Piracy Damages

The company argued that the torrent site caused irreparable damage and demanded compensation from the alleged brains behind the operation, a Pakistani man named Muhammad Faizan.

Since Faizan didn’t show up in court, the movie company’s attorney Kerry Culpepper requested a default judgment. First, he demanded $270,000 but after the court raised questions about the calculation, this figure was lowered to $150,000. However, the amount wasn’t the only problem.

The Hawaii federal court also questioned whether the defendant, who didn’t put up a defense, could actually be sued in America. In 2020, the court concluded that a US court doesn’t have jurisdiction over the Pakistani defendant.

According to the court, the filmmakers failed to show that MKVCage’s activities were expressly aimed at the United States. In addition, the defendant’s contacts with the US were insufficient to invoke nationwide jurisdiction.

Back to the Drawing Board

The ruling was a setback for the rightsholder and its attorney. However, the case wasn’t over just yet, as the court left room to file an amended complaint, to fix the shortcomings in its allegations.

The filmmakers seized this opportunity and added more details to their claim, arguing that U.S. courts do have personal jurisdiction over the defendant.

Initially, this renewed effort appeared to fail. In January, Magistrate Judge Mansfield issued a report and recommendations, concluding that the provided evidence is still insufficient. However, US District Court Judge Seabright sees things differently.

In a detailed 45-page order, Judge Seabright highlights the novelty and complexity of these types of jurisdictional questions. In this case, the defendant allegedly operated a torrent site from another continent, while also uploading torrents to third-party sites.

“Defendant was not physically present in the United States while committing the alleged actions—instead, Defendant sat behind his keyboard in Gujranwala, Pakistan,” Judge Seabright writes.

Virtual vs. Physical Presence

To be held liable, the filmmakers would have to show that the man has a substantial connection to the United States. In legal terms, this is referred to as the purposeful-availment and purposeful-direction tests.

Judge Seabright recognizes that courts can have different takes on this matter. Some require an actual physical presence, while others also count virtual access, through a web server for example.

The Magistrate Judge evaluated this case based on the more strict “physical” requirement but Judge Seabright disagrees.

“Tortious acts that once required international travel, and later the somewhat faster process of international mail, can now be accomplished in a matter of seconds with a few keystrokes and mouse clicks.”

According to the court, the Internet has transformed how foreign defendants interact with the United States. In this case, the defendant used US-based servers from a remote location, which is sufficient to invoke liability.

“[T]he court concludes that when a defendant uses the Internet to commit a tort confined to the digital realm, the defendant’s tortious actions occur at the location of the computer (e.g., web server) that the defendant manipulates to commit the tort,” Judge Seabright writes.

No Direct Copyright Infiringement

Now that the operator of MKVCage can be held liable, it doesn’t automatically mean that he is. With regard to direct copyright infringement, Judge Seabright doesn’t believe that the allegations are plausible.

The filmmakers accuse the man of ripping the “Hellboy” movie, for example, but it’s not clear if US servers were used to do that. In addition, the Judge doesn’t find it plausible that the defendant uploaded actual copies of the movie to torrent sites.

The latter shows that the Judge has a good understanding of how BitTorrent works. The ‘torrent’ files that are shared online are just metadata, and not actual copies of the movies.

“It would make little sense for a ‘torrent website’ to host and provide downloads for the larger movie files. That would defeat the purpose of a torrent network’s peer-to-peer architecture, which achieves greater reliability than a traditional client-server architecture in transferring large files because it does not suffer from bottleneck issues.

“For those reasons, the court finds implausible Plaintiff’s allegation that Defendant uploaded movie files onto torrent websites in the United States,” Judge Seabright writes.

Adding to this, the ruling includes another interesting legal observation. According to the Judge, uploading torrent files that point to pirated movies is not seen as direct copyright infringement.

“[I]f Defendant uploaded onto the torrent sites torrent files associated with the Hellboy movie, then there is no reproduction infringement, because the torrent files do not contain copyrighted material”

Contributory Copyright Infringement

The court concluded that direct infringement is implausible, but the same is not true for contributory copyright infringement. The torrent files themselves are not infringing, but they do allow others to pirate the film.

As such, the MKVCage operator can be held liable for this offense, particularly because the website used servers that were based in the United States.

“Defendant hosted his mkvcage websites on servers leased to him in the United States. Accordingly, Defendant’s publishing and promoting of infringement-enabling torrent files, and his general facilitating of connections between direct infringers, occurred in the United States,” Judge Seabright concludes.

After nearly three years, this means that the filmmakers can move ahead with their request for a default judgment. This can potentially result in hundreds of thousands of dollars in damages for MVKCage’s operator.

Perhaps just as importantly, the copyright holders have a favorable verdict that they can use in similar cases that may come up in the future.

Update: HB Productions’ attorney Kerry Culpepper informs us that MKVCage.fun did include links to full copies for “Hellboy”.

“The MKVCage website did have download links for complete file copies of the movie (not just torrent files) [pdf]. Some of the file sizes were as large as 2.3 GB – clearly not just a torrent file.”

“Also, the MKVCage operator was one of the peers that was sharing copies of the movie on 1337x website. Nonetheless, I am pleased with the result.”

A copy of US District Court Judge Seabright’s order is available here (pdf)

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