For the second time in six months, a B.C. Court has refused a petition from peer-to-peer Internet site isoHunt to have the company declared that it is not in violation of copyright laws.
IsoHunt indexes BitTorrents, which are small files that when compiled together can be used to create movies or music. It launched the petition last year to be declared legal under copyright rules. In March, the B.C. Supreme Court tossed out the petition after the Canadian Recording Industry Association intervened saying the petition should be converted to a full court action. In late July, the B.C. Court of Appeal demoed isoHunt’s appeal.
“The issues involved in this case are fundamental to the rights of creators to earn a living from their work,” says CRIA president Graham Henderson.
“A matter of this importance should be considered by a court with access to all the facts and not, as isoHunt had argued, to only one party’s version of the facts. A lower court agreed with us and now so has the Court of Appeal.”
There are said to be more than 44 million BitTorrent protocol files on the Internet. These protocols allow for users to download files that would normally be too large and therefore cause problems for typical Internet hosts, or computers with low bandwidth capabilities. Sites like isoHunt index BitTorrent files allowing for Internet users to find the links to them.
The argument made by entertainment media associations worldwide is the sites are used to find copyright material like newly released movies. The distribution of which violates copyright laws.
David Fewer, acting director of the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa, says traditionally the law puts the onus on the copyright holder to alert the disseminator of the information that they are in violation of a copyright. This case could potentially put the onus on indexers of the information.
“This is why this is an important case,” he says. “Now we are starting to talk about third-party service providers, we are no longer talking about infringing activity. Nothing isoHunt itself does infringes copyright, at least that is isoHunt’s argument, and under a kind of traditional view of copyright law that is plainly the case.”
Fewer says the case has the potential to be one of the most important legal actions in Canada today.
If isoHunt is found to be violating copyright laws, it would raise a question about other Internet search engines including Google and Yahoo Inc., two of the world’s largest indexers.
“[IsoHunt is] not transmitting . . . they are not communicating to the public through telecommunications, they are not publishing,” says Fewer.
“There is no activity that isoHunt does that falls squarely within the kind of the four corners of the Copyright Act, so to get isoHunt for liability you have got to expand on that definition of what they are doing.”
That would mean the courts would have to go after isoHunt for facilitating the distribution of illegally obtained materials, he says.
“And you have got to really stretch to do that. Once you start doing that to isoHunt, well what about every other indexer out there?”
Lang Michener LLP intellectual property law partner Peter Wells, says traditional law is more difficult to enforce when it comes to electronic dissemination.
He says the best solution might be for the entertainment industry to start finding ways to capitalize on electronic distribution models. If a person can find the materials legally on the Internet and pay a small fee they may be less inclined to seek out illegal means.
“There is the practical difficulty in finding who is responsible when electronic means are used,” says Wells, adding a new distribution model may be the best solution for the entertainment industry.
“If they tried to figure out a way to make it easier for people as opposed to making it harder for people, they might find that their losses aren’t as high.”
