Updated: Thu Nov. 06 2008 17:07:55

ctvbc.ca

The Richmond, B.C. owner of one of the Internet's most popular sites for downloading everything from music to porn is pre-emptively asking the Supreme Court of British Columbia to rule on whether he is violating the Copyright Act.

Gary Fung, 25, runs the IsoHunt.com search engine for BitTorrent files, which are commonly used to download and upload virtually every type of copyrighted material, including music, movies, computer software and e-books.

The site currently links to more than 1.5 million files online, such as the latest chart-topping CDs, video games, DVDs and even movies currently in theatres.

Isohunt.com regularly cracks the Top 200 list of the web's most popular sites, according to analysts at Alexa.com.

"It serves a need that had not been served before, especially with the emergence of BitTorrent becoming a dominant (downloading) protocol," Fung said of the site's popularity.

Lawsuit launched

Fung has been named in a lawsuit launched in 2006 by the Motion Picture Association of America.

After receiving letters last May from the Canadian Recording Industry Association demanding he take down links to copyrighted material, Fung decided he would ask the courts to rule on whether his site breaks Canadian law.

"We filed the court documents because we were threatened by CRIA. Essentially they're saying that all we do is infringe on their clients' copyrights," he said.

The letters Fung received argued his site is "responsible for causing, authorizing and contributing to a staggering amount of illegal music downloading, uploading and file sharing."

The letters also state Fung could be responsible for copyright infringement damages of up to $20,000 per song.

But Fung insists his search-engine website doesn't break any laws since it simply links to copyrighted material online but doesn't host any of it. He notes that Google can also be easily used to find BitTorrent files.

"IsoHunt does not consider that its operations ... infringe or violate in any way the Copyright Act and therefore seeks the protection of ... (the B.C. court) in the form of declaratory relief in relation to clarification of its legal rights in respect of its operation," Fung states in his petition to the court.

IsoHunt.com has a policy of taking down links to files when contacted by copyright owners and has removed more than 50,000 links since 2004, Fung said.

It's similar to the policy that was imposed upon the makers of the Napster downloading software when they were sued for copyright infringement, Fung said.

He added that he invited CRIA to send in requests to remove links but the association "has refused to do that."

CRIA said it would not comment on the case.

Michael Geist, a copyright expert at the University of Ottawa, said IsoHunt.com's take-down policy is similar to what most BitTorrent download sites do in an attempt to avoid legal action.

"Many, many sites argue that there's simply too much content posted (on their sites) to actively monitor so they're entitled to presume their service is being used lawfully" until a copyright holder complains, he said.

"And that's when their potential liability kicks in if they take no steps to address it."

Wide effects

The case could have a broad impact and affect a variety of Canadian websites, and not just BitTorrent download sites, Geist said.

"The interesting question is how will the court characterize (Fung's arguments), because the broader legal implications for copyright and for many parties -- search engines and the like -- could be affected by the outcome of this case."

Fung said he might have to take down his site if the B.C. court case goes against him. Donations from the site's users and advertising revenue are paying his legal bills, he said.

"If we lost the case, it'd depend on what the judgment is. If it involves damages we can't pay, then I'll have to shut down the site," he said.

With a report from The Canadian Press

Comments are now closed for this story

ENOUGH IS ENOUGH
The only people who benefit from these copyright lawsuits are the layers and American companies, not the artists.

Canadians already pay a per-disc charge because they assume every DVD we buy is used to pirate copyrighted media (in other words, they think we are all thieves).

If you really believe this benefits the artists in any way you have to give your head a shake, then follow the money.

Why are Canadian courts and politicians so eager to kowtow to American lawyers and American corporations?

SVCRite
Why doesn't the CRIA stop whining as what they put out on the market is CD's with one or two songs good songs per CD and expect the consumer to pay full price for the CD.
Also for those of us that can't get some of the music we grew up with on CD at the retail level are only left with the option to search on line for a certain older date song we want.
The vinyl version is either worn out or badly scratched having poor quality not worth listening too.
Musicians and actors already make a killing this is just plain greed.
Leave us downloaders alone!!!!!!!!!!!!!!!!!!!!

Greg Novik
Michael Geist doesn't know what he is talking about. There is no "content" on a Bit torrent site. Only an address that links to people with the content. So if IsoHunt is illegal it follows that Google will be found guilty too. I don't think that's going to happen.

Justin
I believe a few months ago, record companies wanted another $0.20 from Apple for iTunes downloads. With only $0.08 going to artists. Greed? I think so...

Mike
It's the beancounters that get rich . The artist is just a the paid servant and that's who copyright is supposed to protect. The laws need to be revisited but not by the people in Ottawa - they know all answers (easy if you don't LISTEN to the question) - you and I have to get involved . That means coming up with a law that allows artists to prosper according to their talents and the rest of the rights got to the people as the companies will be paid their true value by the artists.

Mark Embree
As Greg wrote. Isohunt is a filtered search engine like google. Whats illegal about that. Lets call them filtered search engines and be done with the legal ramblings.

bob in harley
I really do get tired of listening to all the whining from the "artists" and the "satellite companies etc. If I have something and wish to give it to someone that is my right. I paid for it, it is mine to do with as I please.

They are no different than the satellite companies who clog our air with their signals but jump all over us if we dare to grab what they put into our air.

It is time that government quit looking after their friends in big business and think about what is really going on.

Anonymous
I agree with a previous comment. Poeple in the music/entertainment industry already make way too much money. We pay an arm and a leg for cd's...and has anybody been to Blockbuster lately...they increased their prices even more!!

Zappacostta
Hypothetically this would also mean that the phone companies could be prosecuted for publishing phone numbers to escort services that supply illegal services. I think there is a double standard here...

Esther
Wow, this guy is a genius. What a great PR stunt to drive traffic to his site!

Rob McIntyre
I am confused. What "per disc charge" are we paying ? There is currently NO levy on blank DVD media, hard drives or media players. The Canadian Private Copying Collective failed in their attempts to get it.

Liberal Nick
If markets change due to technology companies and industries need to adapt to this change in order to stay profitable.

Using the court system to force customers to hand over their hard earned cash is disgusting.

The RIAA and MPAA refuse to adopt a new business model for the times and will go the same way as the dinosaur.

Great initiative Mr Fung, I wish you the best of luck.

JJ
Won't it be fun when the CRIA tries to sue Google?

Brian
why is the CRIA always pointing the finger at these sites. 15-20 years ago people we're copying music from there friends and sharing it with there class mates. CRIA is only making it a big deal because they claim they are losing money from when people download instead of buying. If i can not download the song then i would not buy it because i am on disability and can not afford to buy music. If CRIA or motion picture of america thinks that going after every downloader or every website linking to files that they claim are illegal is going to stop the downloading, keep on dreaming. It will never end no matter how many you go after. So save your money and cut your losses

Independent Canadian Movie Theatre Owner
Why don't people STOP downloading copyrighted movies and music that OTHER people make a living off of...yes the artists and actors and producers, but also all the people in supporting occupations that make the technical aspects and distribution of music and movies happen. Face it...if you're not paying for it and it's less than 50 years old, you're probably SWIPING IT.

Shame. On. You.

Stop thinking that you're ENTITLED to have something just because you WANT it.

Dave
kudos to Greg Novik (previous comment)

Torrent listing sites are just that.. listings. If you type in the name of a piece of media and add the word "torrent" to the end of the search query into Google, or ANY OTHER SEARCH ENGINE, you'll find thousands of listings for direct download of those torrent files.

If it is illegal to list torrent files (which DO NOT contain any of the media involved, merely information about the torrent composition, and tracker information), then they will need to have them scrubbed from every search engine as well.

Torrent protocol, like all perr-to-peer protocols, is only a vehicle for sharing files. The actual transmission of copyright data (if any), is done DIRECTLY BETWEEN PEERS -- all trackers do is keep a list of peers sharing the given torrent. Listring sites are even less culpable, in that they don't even host the tracker side of the exchange!

If you put up a website that talks about an artist's album, is that illegal? No. Why then is it illegal to list torrents that mention that same media? The total damaging amount of information shared is the same in both cases. Perhaps worse on the review website, since they can damage the artist's reputation, while the torrent site is in a way PROMOTING that artist!

This is the legal battle about the use of VCR's all over again... Fact is, it's just as easy to record a song off the radio as it is to download, yet taping off the radio, something teenagers do every day and have done for years, is NOT pursued as a violation of copyright laws.

Recording companies need to put more effort into quality, rather than litigation...

Gabriel in Ottawa
RE : ENOUGH IS ENOUGH

How are 'Canadian courts and politicians so eager to kowtow to American lawyers and American corporations ' when it comes to copyright infringement pertaining to the internet?
Can you name even one internet site that has had a judgement against it by a Canadian court over copyright infringement on the internet?
How about an individual?
Do you even know that it IS LEGAL to download copyrighted material in Canada for personal use? WOW, talk about 'kowtowing' to the USA!
AND, who said this benefits or does not benefit artists? Are you making up an issue here? Copyright law only matters dependent upon who it benefits? Or does it depend on what the actual law is?
SO, the whole point of the article suggests a huge benefit to Fung who is asking for legal clarification - and you are suggesting a favourable ruling for Fung will only benefit 'the layers and American companies, not the artists' ? Are you a mouth breather?

BitTorrent User
Like shutting down ISOHunt is going to make a difference or put an end to all the piracy.

What if I host a site from Russia, North Korea, Hong Kong or even in South East Asia, what they going to do then? Bombard me with the law suit?

I don't see Motion Picture putting movies for download that are OLD so why should I pay for that crap anyway?

Randy Petten
This can't and won't be stopped. Even many of the gadgets and electronics we buy revolve around this "downloading industry" (mp3 players, ipods, divx players,cd/dvd/blu-ray burners) Let's face it, the world we live in is evolving, and these music and movie industries have to make changes as well instead of fighting them. Heck, if we could download gasoline for free, would you?

Marc
$20,000.00 for a single song downloaded, are you kidding me? That is seriously draconian to any reasonable person (a warning or some sort of incremental step would be more realistic). Beware Conservative fundamentalism, it is inconsistent with Canadian values. Vote Green.

jason.oliveira
isohunt, and sites like it, don't even host their own torrents. instead, they act as a directory; linking to other bittorrent sites that host the torrent files on their trackers. that's a decent defense, unless the court finds that you can be found liable for linking to a file (as 2600 Magazine found out in the states), they have a pretty solid defense.

however, the problem is that bittorrent, like every good disruptive technology, is removing the power from content distributors. Isohunt was one of 30+ sites to replace the mighty suprnova. the game changed a few years ago, when control of content slipped through the fingers of the industry, and these lawsuits are examples of companies trying to push back the rising tidal wave using only their hands. for every one they shut down, 10 more pop up in it's place.

if there is one lesson to be learned from all of this, it's that technology will find a way to disrupt even the most solid market, so perhaps we should all be riding the wave and making it work for us, instead of making futile attempts to slow the tsunami down, so a few people can keep their revenue streams they feel entitled to.

Revy
The world has changed and the media industry has refused to adapt.

Both the artists and media companies are rolling in cash - the more a song or movie is downloaded, the more people would buy the DVD / Blu Ray / CD to get a perfect copy or go to a concert / buy merchandise, etc...

In years past record execs would do the 'payola' (give gifts to radio station DJs to play their songs). The more people hear the music and like it, the more popular the band will be. Many bands were made popular by this vehicle.

Our government should not be enforcing the will of the American media companies.

The Other Side of the Coin
To respond to the comment that "musician and actors already make a killing", I cannot disagree with you that those artists that have paid their dues and have finally gotten their break are now reaping the rewards of years of hard work. However, as a musician, I am all for downloading music for free. Clearly, digital media is the path the industry has taken, like it or not. For a new band trying to get recognized, what better way to get exposure then letting potential new fans sample your music for free. Then, in turn, it's up to the artist to deliver in return, by stepping it up a notch....by writing more than 1 or 2 good songs on the album, by putting on some amazing live shows, and by offering the consumer some amazing artwork in their CD. Seems like all this has been lost with the 'download era'.
And not all artists are making a killing...by no means is that statement true. That comment is proof that the stereotype is alive an well regarding artists starting to get a break. As soon as your song hits radio, or makes it on MTV or MuchMusic, people assume you are making a killing. You know how hard it is to borrow $20 after your song is on the radio?? Artists are always the last ones to get paid, and at the end of the day, after managers, agents, lawyers, record labels all get their cut, you're lucky if you have enough $$ left over to add ketchup to your Kraft Dinner.
In summary, let the music be downloaded for free, and lets see if artists step it up to ensure we are getting good value for our dollar.

JPF
"enough is enough" is correct, all canadians purchasing recordeable media are already forced to pay a charge that is distributed to copywright holders. I download often, mostly TV shows already available on my cable package. I do this for convienience and it is no different than if I used a PVR. Most of my music in recent years has been purchased from Itunes when available. Prior to itunes I downloaded for free, I switched because the content I wanted was finally available in a convienient and acceptable manner to me (the consumer). Now I pay for music. And that's really what it's all about. MPIAA, RIAA needs to stop complaining and fighting consumers. We made it clear we prefer to obtain our music by digital download. It took them years to realise this, and mostly because Apple managed to open their eyes. The job of a corporation providing goods and services to the consumer is to provide them in a manner that is attractive and preferable to consumers. Don't fight us and call us all thieves when you fail to anticipate consumer trends, then fight consumer trends for years, trying to force us to obtain your goods the way you want us too. All business' constantly evaluate how they provide and market their goods to us in order to keep selling. How did the music and movie industries come to believe good business was dictating to the consumer it's our way or the highway? Perhaps they've been hanging out with oil execs... Sure it works for them, but we havn't figured out how to get free gas yet :p

Bernard Romanycia
Americans are bankrupt and no longer produce anything of value. Hollywood movies and today's music; please, these so called products are junk anyway.
What are the Lawyers going to do when they're replaced by computerized robots?
As for priorities this has to rank near the bottom.

Stellabones
Most of the music I download, I HAVE paid for. I paid for the song when it was on vinyl, then on audio tapes and again on CD's.

How many times do I need to pay for a song? It was only written and recorded once.

Brian Matthias
I have sent a few emails to various movie companies, I have explained how to eliminate downloading. Do they respond. No.

notelady Lethbridge Alberta
I download from sites like Iso hunt for 3 reasons. I download with the intent to purchase at a later date because I want a better copy of my own that is complete with the artwork for the cover the bouns features and the like. I download to save money because I use it to sample the new music, movies and the like being released.
I download because sometimes I am able to find unique files that I remember seeing as a child or because I never found it anywhere else. I own and have owned close to 500 cds and 200 movies, so I say I have indebted my hard earned monies to the artists and the like over and over. I am a musician by trade and know how hard it is to reap any earnings from it but in reality these laws are only helping the record companies become rich they do not help the artists at all. Most of the stuff I download has been in the public realm for so long that it is hard to tell what is copyrighted or not anyway.