On Twitter, sh1zuka raised another interesting point to think about:
@moritheil conversely I think they went over. By DLing the HS eps via bittorrent, they uploaded to the swarm, same as the 1337 ppl they sued
I don’t think we know for sure that they used a torrent service. It’s quite possible they used a direct download. The only way such a thing could be proven would be with a court order, which they are unlikely to ask for. A defendant sued by them could try, but even if they did, I wonder what the legal status of a downloader from FUNimation is – would it be OK to download from the official distributor, who knowingly uploads as they download? Is there any implicit license in the knowing act of uploading? (If I put my candy on your tray, can you eat it?)
Even if so, does the proportion taken from FUNi matter? Is it only a defense if 100% of the file was downloaded from them? 50%? 10%? FUNi can certainly upload all it likes – but will a judge accept the argument that the upload end of a torrent being legal implies something about the download end? There’s no entrapment or anything, since that would require FUNimation to set it up, and they almost certainly got it from a preexisting downloading scheme.
If these possibilities were invoked in court, it would probably take a long time to sort through all the scenarios, since the case would probably wind up making precedent. However, for that very reason, a defendant (most likely cash-strapped) would be unlikely to want to take this approach.