Kanye West vs. The Pirate Bay: Leaning on the Inducement Liability Standard

In February, Kanye West released “The Life of Pablo,” his most recent album, exclusively on Tidal, a music-streaming app owned by rapper Jay-Z.  Allegedly, 48 hours after the album’s release, The Pirate Bay (“TBH”), a website torrent, made the album available for downloads through its peer-to-peer file sharing system.

Kanye hoped that his exclusive release would increase Tidal’s music-streaming downloads and subscriptions; however, it did quite the opposite, resulting in an estimated loss of 10 million dollars in album sales.

Subsequently, Kanye took to Twitter and threatened to sue TPB for copyright infringement.  TPB, in response, created “Kanye Bay,” another proxy download made in Kanye’s name.

The biggest problem in finding TPB liable has to do with the United States Copyright Law’s limitation on copyright infringement. 17 United States Code section 512 provides that a “service provider shall not be liable for monetary relief, for infringement of copyright by reason of intermediate and temporary storage of material on a system or network controlled operated by or for the service provider in a case which the material is made available online by a person other than the service provider.”  We obviously know that TPB is facilitating piracy as committed by their subscribers, as the system allows subscribers to post IP addresses from which downloads of copyright protected materials can be produced.  But the way the law is written, it is difficult to find TPB liable under Copyright Law as the company’s system acts as an intermediary that only creates a pathway to reproduced copies of copyrighted works. But is there another route to finding liability?

A Ninth Circuit decision could work in Kanye’s favor, see Columbia Pictures Industries, Inc. v. Fung, No. 10-55946, 2013 WL 1174151 (9th Cir. Mar. 21, 2013).   Here, the court adopted Grokster’s inducement liability standard in finding Fung liable for copyright infringement (see Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 545 U.S. 913 (2005). The Court in Grokster inducement standard is as follows:

 “[O]ne who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression … is liable for the resulting acts of infringement by third parties.” Id. at 936-37.

The Ninth Circuit Court of Appeals found Fung liable for copyright infringement when he made available motion picture films on his torrent.  In finding Fung liable, the Court discussed how Fung offered his services with the object of promoting subscribers’ use to infringe copyrighted material and how Fung solicited and encouraged users to upload torrents.  Is not TPB doing the same?  What about now that TPB has created “Kanye Bay”?  Is this not solicitation and encouragement? Against Kanye’s favor, he was recently accused of downloading from TBH as he uploaded a screenshot of computer showing alleged misconduct. Unclean hands? See picture of alleged misconduct below.

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