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Weak Copyright Laws? Recording Industry Files Massive Lawsuit Against isoHunt

The lawsuit, filed in B.C. courts in May 2010, alleges that isoHunt facilitates copyright infringement on a massive scale.  It seeks millions of dollars in damages and an order that the site cease operating. The lawsuit alleges that isoHunt contributes to wide scale copyright infringement and that its activities violate and can be stopped by current Canadian law.

The lawsuit may come as a surprise to politicians and other observers accustomed to hearing that Canada does not have the legal tools to address online infringement, yet that perception has always been more myth than reality. As the isoHunt lawsuit demonstrates, the legal power to combat online infringement has existed within Canadian copyright law for years.  It has been the industry’s reluctance to wield those powers – not their absence – that may have allowed infringing websites to call Canada home.

The claims in the isoHunt lawsuit must still be proven in court (as would any case using the new powers contemplated by Bill C-32), but past cases suggest that Canadian law is hardly toothless. In 2008, the recording industry filed a lawsuit against QuebecTorrent, a Quebec-based BitTorrent site. Within months, the Superior Court of Quebec handed down a permanent injunction against the site and it discontinued operation.  Soon after, the industry targeted other sites with cease and desist letters, relying on existing law to demand that they stop operating.

Foreign organizations have also successfully used Canadian copyright law to counter alleged online infringement.  Last month, the Dutch anti-piracy group BREIN announced that it had quietly shut down dozens of BitTorrent sites by filing copyright violation complaints with the sites’ hosting providers. While BREIN keeps the names of the sites secret, it notes that Canada is one of the countries where it brings legal action.

The reality is that all major countries are home to some BitTorrent sites, including Canada.  The question is not whether Canadian law is equipped to deal with these sites – recent history and the latest lawsuit demonstrate that it is – but rather why the industry has opted for a strategy of damaging Canada’s reputation by loudly claiming that it is unable to address online infringement using existing law while it quietly files court documents that suggest that the opposite is true.

29 Comments

  1. Honestly, it’s just using spin & misdirecting to gain as much to your advantage as possible. Everyone does it to some degree, it just seems the content industry (and ISPs it seems) are better at it than some.

  2. As I see it
    it appears that the calls for more stringent copyright laws from groups such these are not because Canada is a privacy haven.

    The issue seems to be that, as was described above, “It has been the industry’s reluctance to wield those powers” is the main impetus. After all, for the industry to actually do something about this they need to take action and spend their own dime in doing so. The requested changes seem to want to put the onus on the Crown to search out and prosecute offenders. A simple case of “private profits and public liability”, in that the companies make the profits and the public takes the expense of ensuring the profits. Sort of like how the banks wanted to offload bad debt to the government a couple of years ago.

  3. Isohunt is not a torrent site
    It is a search engine for torrents. I(s Bill 32 going to make search engines illegal?

  4. I see Barry Sookman has been busy, all while calling Canadian copyright law weak.

  5. Could it be that the recording industry is hoist by its own petard here? They lobbied for and got the CD tax grab to pay for their “losses” when folks copied music to a CD. Now that that’s hopelessly outdated they want to make any form of copying for any purpose illegal.

  6. The worst that will probably come out of this case is a filter, like how isoHunt was forced to for MPAA members content.
    Calling for a total shutdown is very broad as the underlying functions between other major search engines is very similar.

    isoHunt simply crawls the web fetching and indexing .torrent files, whats the difference really.

    This case has much further reaching implications than just isoHunt.
    Also the whole ‘third party liability’ and ‘merely linking to content’ has really yet to be tried with success in Canada.

    Also, I really HATE reCAPTCHA….

  7. Irony
    The CRIA facilitates copyright infringement on a massive scale too, really, but nobody really talks about that much….
    http://www.michaelgeist.ca/content/view/5563/125/

  8. @Spike:
    Not so much facilitates as performs.

    Of course, then there was the lawsuit with “The Who” when the label started selling individual tracks digitally, claiming that they weren’t breaching the contract which stipulated that the works could only be sold as an album.

  9. Wasn’t that Pink Floyd?
    I remember Pink Floyd getting into it with their label about selling individual tracks, contrary to their agreement. (As we all know, Floyd’s album tracks supposedly combined to “tell a story”, though we heard the singles constantly pumped over the air waves.)

    Was there also a similar scene with The Who?

  10. Devil's Advocate says:

    @Anon-K:
    Sorry for the unintentional use of your alias in the previous comment. :)

  11. It’s quite obvious that existing Canadian law is sufficient to define the distribution of copyright materials as illegal and C-32 wouldn’t make it any more illegal. The problem, to the larger media providers, is that the existing law puts the emphasis on them to pursue and prove each case of infringement. This takes effort and resources and basically isn’t overly cost effective, affecting their bottom line. This is the cause of “industry’s reluctance to wield those powers.”

    I quote Danielle Parr, executive director of the Entertainment Software Association of Canada, who says “exceptions to the protection of digital locks won’t work. “When you create a big hole in the law that people can drive through, the onus is suddenly placed right on the copyright creator to prove the infringement.” http://www.itbusiness.ca/it/client/en/home/News.asp?id=57834&PageMem=2#

    The goal here is to create a more push-buttony law, where the effort needed for proof or data gathering are minimalized.

  12. @Devil’s Advocate
    No problem. It may well have been Pink Floyd. I am running from memory on that one (and I’m not getting any younger :-). Certainly it was a Brit band that did a lot of concept albums, and hence the contract clause.

    @MikeB: “the onus is suddenly placed right on the copyright creator to prove the infringement”. A great example of what I was trying to get across above. Imagine that, the accuser needs to prove the accusation in court. As I said above, I am not sure it is about reducing the burden of proof but rather perhaps about shifting it to the Crown.

  13. Mr. Geist is quite correct – Canadian law is fine as it is, and it’s simply the industry’s fault for not utilizing them. The cited examples are proof.

    The thing that is interesting with this case is that ISOhunt is not technically a torrent site – it is a search engine. One cannot upload torrents to ISOhunt. ISOhunt merely crawls the web, looking for links, in the same way Google does. It should be interesting to see how this plays out, and the ramifications the decision will have. This could be a slippery slope for all search engines.

  14. Wealth Destruction
    Wealth destruction is supposed to happen, as part a healthy, open market. New technology moves into established markets, making them better-faster-cheaper (more efficient), which is supposed to make the market accessible to more competitors. The collection of computers, the internet, and the bittorrent protocol, are a natural economic force acting in a consumer-positive manner on an anti-competitive market niche. Old, aggregated wealth is recycled and displaced as new, distributed wealth. Consumer money that does not have to be spent in an inflated, inefficient market is spent elsewhere, or in greater quantity in the same market. The only “destruction” is to the established market players, who really really really really really don’t want to give it up. Neither would I, based on the numbers I’ve seen coming out of that niche.

    With this new tech, we now have independent artists & producers able to put out material, completely circumventing the Old Guard. Musicians and film makers are able to create more wealth for themselves, as unhindered, competitive independents (another sign of a healthy open market). I’m sure, for a handful of people, it’s a damn shame that a two- or three-digit ROI is not perpetuating itself, but frankly, it’s a market evolution that every stupidly profitable niche is supposed to face. What are we going to do when then technology exists for a home computer to scan the text of an ebook and render an animated movie out of it? How about when it the technology allows for creating variations on the storyline of an established work? How about software capable of rendering new lyrics & vocals over an old song? Do we suppress this technology in the name of protecting the established market players? How much innovation are Clement and McTeague willing to stifle, in order to keep the market anti-competitive?

    When new manufacturing processes were developed, that lowered the cost of making digital versatile discs from a buck each, to a nickel each, did the industry decry wealth destruction then? Of course not, it was just good business. Also, AFAIK, consumer digital media interests represent only a piddling portion of Canada’s GDP, so it’s not like there is going to be any significant consequent fallout to national middle-class employment numbers.

    If media providers don’t like the shift to demand-based motivation in the market of digitized home entertainment, then IMO they are more than welcome to pull out of the market, and let the newer, hungrier players move in to fill the void. If they want to retain control of their product, then don’t even think about *selling* it to me – stay in the bricks-and-mortar theatres, earn a musical income from touring and merchandising. Like before the “home market” existed. Oil fields runs dry, mines contain finite amounts of ore, the “home market” niche, as it has been exploited, has run its course.

    So, what I want to know, is : Is this “right wing” government ever actually going to employ a right-wing economic ethic & practice? If our political predecessors were as short-sighted as Clement and McTeague, we’d still be riding around in horse-drawn carriages, and burning coal to heat our homes, because heaven knows, we can’t have new technology affecting an established market.

    As far as I’m concerned, if I must have left-wing governmental economic practices, then it is damn well going be by left-wing representatives.

  15. Check out Minecraft Game
    Independent game and has over 1 million pre purchases. It is independant and the developer just said that as long as he is compensated he will keep working once that is done he will release it to open source.

    Too many developers look for the first 24 hours stats so they can get funding for another game. Why not let people look at the development process and invest in it like open source and other “shareware” types of applications. remember…the internet applications were started with freeware then shareware like Doom was first released by ID software.

    Anyway…as someone in movies once said…nature will find a way….


  16. I quote Danielle Parr, executive director of the Entertainment Software Association of Canada, who says “exceptions to the protection of digital locks won’t work. “When you create a big hole in the law that people can drive through, the onus is suddenly placed right on the copyright creator to prove the infringement.” http://www.itbusiness.ca/it/cl…PageMem=2#

    Yes, that is exactly the problem, is that the onus is on the copyright holder. Just ask eBay how little certain copyright owners enforce their copyrights and then suddenly one day out of the blue they want eBay to stop people from selling their works, period, regardless of legality, second hand sales, parallel import laws or whatever.

    I have no doubt in my mind that at least half of things found on the internet are illegal in at least one country. People need more education and need to be disciplined not to cheat (which includes not downloading pirated materials.)

    Digital Assets have no real-world tangible existence, so the business models have to change to make it easier to get intangible assets faster and easier than it would to obtain it illegally. This is why the Apple iTunes/App store is successful. If it’s locked down (DRM) then it’s harder to obtain and migrate. People are far more willing to buy the same piece of content 20 times to keep it in their collection if the price to repurchase is cheaper than the time cost to pirate it. It’s the artificial scarcity which motivates people to pirate things. There are people who love to have “every X content ever made” even if they never use it, and those people just aren’t your customers.

  17. When will the industry realize that search engines facilitate copyright infringement in the same way that a street address facilitates a home invasion. Hint: It doesn’t.. it merely points to something, and that not illegal, nor should it be.

  18. Copyright Attorney says:

    Similar Story
    Here is a similar story

    There’s a new thesis making the rounds that has already stimulated plenty of discussion about the benefits and costs of copyright laws. It comes from the German economic historian Eckhard Höffner, his work summarized in a Der Spiegel review titled “No Copyright Law: The Real Reason for Germany’s Industrial Expansion.”

    Höffner contends (according to the review) that the near absence of copyright law in eighteenth and nineteenth century Germany laid the groundwork for the “Gründerzeit”—the enormous wave of economic growth that Deutschland experienced in the middle and later nineteenth century.

  19. Bittorrent is a P2P protocol… like FTP or HTTP.
    One thing that concerns me about these cases is that specific Internet protocols are being vilified because they *can* be used for nefarious purposes. As others have pointed out, many “torrent sites” are simply search engines like Google. the .torrent files themselves don’t hold any copyrighted content (not creative enough); they are essentially sophisticated Uniform Resource Locators much like the URLs used for HTTP.

    Over the pas month, I have deliberately used the Bittorrent protocol when possible to show that it has legitimate uses:
    debian-6.0.0-i386-CD-1.iso.torrent
    gnewsense-livecd-deltah-i386-2.3.iso.torrent
    i686-core-2010-09-17.iso.torrent
    LibO_3.3.0_Win_x86_helppack_en-GB.exe.torrent
    LibO_3.3.0_Win_x86_install_multi.exe.torrent
    Patent_Absurdity_HD_3540kbit.ogv.torrent
    Patent_Absurdity_HQ_821kbit.ogv.torrent

    Only about 8GB worth, but you get the point.

  20. correction
    Oops, that is only 2.7 GiB.
    8.4 GiB is how much I downloaded over the past 2 years or so.

    Not listed are defunct .torrents and a Gnu/Linux live DVD image I deleted after burning to disk.

  21. Canada, fuck yeah!
    Canada, added to the list of copyright anal countries. Period.

  22. Torrents build wealth for Canada
    All those companies, all those software developers, all those teachers and all those individuals. All of them use BitTorrent to gain quick and free access to the media, tools, software and history they need to enhance the life of others.

  23. Anonymous Coward says:

    Some People Have No Choice but to Pirate
    Dear CRIA / RIAA,

    Please wake up – if you rely on iTunes / Netflix (and hopefully other non-monopolistic sources) to distribute your content, please

    1) ensure that the content is available within a few days / weeks after it has been made publicly available elsewhere.
    * Then people would have no problem actually purchasing the media from various sources, rather than attempting to pirate it in order to stay up-to-date with music, series’ or films.

    2) There are people who would gladly pay for content if they actually could.
    * You are ignoring a largely under-estimated market of Linux users.
    * Why don’t you ask Ubuntu at some point how many times their OS is downloaded per day to get an idea. Then compare that number to Microsoft’s OR Apple’s annual OS-sales figures. This is JUST ONE Linux distribution.
    * Apple has no intention of creating a Linux client. It’s unfortunate, but true, and a major roadblock for any Linux user who would like to legitimately pay for the media they download.
    * NetFlix has no intention of creating a Linux client until they are guaranteed that certain DRM technology can be run safely. Why don’t you make some investments in that area (i.e. be pro-active) rather than cleaning up the mess later (i.e. being reactive).

  24. screaming for innovation, but implimenting lockdown?
    Someone (on slashdot?) made the point that Obama seems to be calling for Americans to innovate … while at the same time he/they seem to be passing laws which make it harder to do so. (DMCA, software patents, etc)

  25. Canadian Consumer says:

    All they have to do is charge reasonable rates. It is very simple really. When I see “The 5 Deadly Venoms” on DV D in the sales bin of my drug store, for $3.99 I have no incentive to download it. Just like when I buy a paperback, I have no incentive to go photocopy every page from it. Make it reasonable and accessible and you will make money through volume. Over price it and people will use the existing technology to circumvent your rights. Like Anon pointed out in this thread, this does not give your the right to get TAX PAYERS to enforce such laws, because you choose to create a BLACK market for it.

    We don’t want to pay for your corporate cigar smokers, warehouses, delivery trucks, middle men and groupies. We would just like to pay to the artist directly, as well as their technical staff. I don’t want to pay for boardrooms, conglomerates and armies of lawyers that push people around creating a market of privilege and for the elite.

    In the old days, distributing music was COMPLEX. You needed the suit with the cigar, now the mechanism is available to us all through technology. You and I can post a YouTube video and be noticed (Justin Bieber). The old guard does not like that, they are fighting bitterly to be allowed to scavenge off these supply lines.

    The business model has changed for these folks, their racket has become obsolete due to technology. I can cry over smith and corona and their typewriter empire all I want, but last thing I want to do is mandate a typewriter in every home.

  26. Wealth destroyers
    I have to laugh at that one! The government is being lobbied excessively not only on this issue but I dare to say close to 95% of the unnecessary laws that have been created were designed to protect the wealth of the mega billion dollar industries! For example, the loosening up of environmental laws (tar sands excavation), so that big polluters can maximize profit in the short-run! The obscene trend of corporations moving their wealth creation jobs that could be filled domestically and justifying the need to move to third world nations in order to be competitive! Where are the laws to prevent these corporations from doing this—uh? And once these corporations set up their factories offshore, they essential pay workers per day what they would normally pay Canadian workers per hour! And then these wealth destroyers end up destroying the environment in the countries where they’ve out sourced to as well as destroy other humans’ worth by creating both slave wage jobs and unsafe working conditions for their labour!

    The epitome of this obscene lobbying by corporations to protect their turf is the U.S. pharmaceutical industry. This industry give excuses why Americans have to pay high prices for the exact same drugs sold in Canadian and Mexican pharmacies. Not only that but when U.S. consumers attempt to out source their supply of medications via buying from ‘legal’ Canadian and Mexican stores (including on-line)—these U.S. drug giants have been heavily lobbying congress (spending millions) to prevent consumers from being able to buy their personal medications outside the United States!

    The bottom-line is all these laws being passed are only for the benefit of corporations and not the consumer! The lobbying efforts of corporations is so out of whack that if we were still in the age of the horse, carriage and buggy whip; if the internal combustion engine were just making its way onto the market, the carriage and buggy whip consortiums would be lobbying politicians to prevent this technology from gaining a presence on the market! Therefore there’s absolutely no difference between that hypothetical argument and today’s reality—-corporations lobbying efforts are there for only one thing to protect their profits even if it’s at the expense of hampering technological innovation!

  27. They’re complaining about our laws because it puts the burden of proof on them, where it should be. It’s too time-consuming and expensive to go after every 12-year-old who downloads a Justin Bieber song. Better to convince the world we’re a haven for commercial pirates, now that they’ve redefined piracy itself.

    Failing that, just sneak some concessions into CETA, and Canadian ISP’s will be handing over our adolescents like butter at a corn roast.

  28. Managing director BREIN, the art of protecting the creative
    Dear mr Geist

    Your argument that Canadian law must be sufficient to deal with Internet piracy because foreign organizations like BREIN are able to invoke it successfully to close down illegal sites is incorrect.

    In our 12 year long experience in dealing with internet piracy Canada has become a preferred shelter for sites that conduct illegal activity due to the refusal of hosting providers to cooperate in making such sites inaccessible and disclosing name, address and other details identifying their clients which are anonymously operating such illegal sites. Canadian law has proven to be totally inadequate to deal with enforcement against the facilitating of structural infringement by websites hosted in Canada. And worse, it would be naive to think that the reputation of Canada as a safe haven for illegal internet activity confines itself to large scale copyright infringement and does not extend itself to other criminal activity as well.

    The Dutch foundation BREIN sent cease and desist summons to 23 anonymous Dutch websites that were hosted in Canada. The websites were in Dutch and aimed at a Dutch audience, Dutch law applied and was invoked, not Canadian law. In fact we believe we could not achieved the closure of these sites if we had had to rely on Canadian law. Although we copied the Canadian hosting providers on our summons, they did not respond.

    We know from experience that for effective action against sites conducting illegal activities one must be able to obtain cooperation of the hosting provider to get such sites taken down and hold their owner/operator liable. For Canada to stop being a preferred safe haven for illegal sites it is necessary to require Canadian hosting providers to register true name and address of their customers for whom they host sites and to disclose such information to injured parties as well as disconnecting the illegal sites themselves.

    Kind regards,

    Tim Kuik, managing director of the BREIN foundation, The Art of Protecting the Creative

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