Over the past several weeks, there has been considerable discussion about the lawsuit launched by more than two dozen record labels against Canadian-based isoHunt that relies upon current Canadian law. The lawsuit is noteworthy since contrary to repeated claims that Canadian law is unable to address sites like isoHunt, the recording industry has filed both a statement of defence and a statement of claim in the B.C. courts that cite current law as the basis for a takedown order and millions in liability.
CRIA’s supporters have argued that the discussion has been misleading since isoHunt initiated an action asking a court to declare its activities legal before the record labels responded with their own court filings. For example, Barry Sookman told the Globe my comments were “misleading” and that “isoHunt started this and the recording industry was simply defending [itself].” Liberal MP Dan McTeague rose on a point of order in the Bill C-32 committee to similarly declare my column “misleading and false” and stating that “I just want it clear for the record that isoHunt itself initiated this legal action.”
As I told the Globe, I think the timing issue misses the larger point – the recording industry has argued in multiple court documents that current Canadian copyright law can be used to shut down isoHunt and to force the site to pay millions in damages. While this must still be proven in court, the good faith reliance on current Canadian law certainly undermines claims that the law is ill-equipped to address the site and raises questions about why the industry has persistently painted Canadian law facilitating a piracy haven when its legal actions suggest otherwise. However, if the timing matters to some people, it is worth noting that the legal chess match began not with the isoHunt lawsuit but rather with a cease and desist letter that Sookman sent in 2008 on behalf of CRIA to isoHunt months before isoHunt filed its suit.
The letter included the following:
The unauthorized copying of our members’ sound recordings that occurs as a result of the operation of the isoHunt Site causes irreparable harm to CRIA record companies and their recording artists. As such, our client considers this to be an exceptionally serious matter. Under the Canadian Copyright Act, a rights holder is entitled to seek statutory damages of up to $20,000 for each sound recording infringed. In addition, our client’s members would be entitled to seek legal costs, punitive damages, and injunctive relief.
Given the above, our client requests that you immediately:
1. remove the isoHunt Site from the internet;
2. cease operating any BitTorrent tracker or indexing site that infringes the copyrights of our client’s members; and
3. preserve records, including all electronic records related to the use and operation of the isoHunt Site, such as, without limitation, the electronic logs of all inbound and outbound traffic to the website, including the IP addresses of all visitors to the site.
Please reply forthwith to confirm that you have taken the above actions to comply with the foregoing demands. Given the seriousness of this matter to our client, if we do not receive a satisfactory response within five business days, we may not provide any further notice before legal action is commenced against you.
The demand from CRIA is clear. Much like the court documents that followed, it argues isoHunt is violating current Canadian law and it threatens to use the law if it does not agree to its demands. In other words, years of arguing in court and demand documents that Canadian law is good enough to stop sites like isoHunt accompanied by years of telling government officials that it can’t.