isoHunt sues CRIA on legality of search engines

Posted: Mon Sep 08, 2008 1:54 pm

This is one of the hardest decisions I had to make, to sue one of the most powerful lobby and corporate conglomerates in Canada. But for sake of continuing operation and development of isoHunt, this is something we must do. I don't pretend to speak on behalf of all BitTorrent websites or users, but I speak to point out that with a lawsuit from CRIA hanging over our heads, we fight not just for our survival as an internet company of search engines and social networks, but also for other websites, from BitTorrent sites to larger search engines like Google, on which most of us have come to depend. The legal ramifications concerning search engines and linking here are far reaching.

For a better understanding of what brought us here, this is a brief history of our dealing with the CRIA (Canadian Recording Industry Association).

In October 2006, CRIA's anti-piracy department sent us a notice and takedown on certain songs. They included correct identification by URL's of .torrent links to files allegedly infringing their copyright. We took them down.

There was no further communication, until May 2008 when Mr. Sookman, counsel representing CRIA, issued cease and desist letters to isoHunt.com and our sister sites ( Torrentbox.com and Podtropolis.com ), as well as to our upstream ISP. The letters all used similar language, that our websites serve no other purpose but to infringe CRIA's copyrighted music. They harassed our ISP with accusations of hosting a den of thieves (my paraphrase). We pointed them to our copyright policy ( http://isohunt.com/dmca-copyright.php ), and that we have cooperated in the past in identification and takedown of links they wanted removed. We asked them in subsequent letters to identify links to their copyrighted files as we had done in 2006. They ignored our offers, and cited there's no "safe harbor" for a service provider like us and our copyright policy doesn't mean anything to them in Canada.

Here lies some great ironies. We have had cooperation from various music companies and associations in other countries in issuing notice and takedowns for links to their respective infringed content, some of which are the same international companies that CRIA represents. Some of their copyright agents have made blunders in misidentifying links, like requesting takedown of links that look very much like porn, based on colorful vocabulary in their filenames, or at least we were pretty sure were not music files based on some of their file extensions. But we move on after rejecting such obviously erroneous requests. But CRIA's blatant ignorance of their very own past takedown practices which happened to be proper and correct just because they want to sue us, illustrates the importance of ISP safe harbor provisions in the new bill C-61 for the survival of whole classes of internet websites and search engines.

No wonder why a group of prominent Canadian artists and labels formed the CMCC, broke out of CRIA and told them, "not in our names" ( http://www.musiccreators.ca/wp/?p=231 ). This is why Canadians who care about music should support artists in the CMCC group, those who doesn't want to sue their fans, those who are trying to find ways for fans to share in our new world online that can fairly compensate their work, and those who actually make good music. At least I'm a fan of some on the CMCC's artists list.

Before you think I'm trying to rally a riot against copyright, I want to reiterate our stance that we do believe in Imaginary Property (IP) because imagination takes effort, and realizing them through music or videos or games takes more effort, time and money. Copyright laws need reform for the 21st century, and my hope as a Canadian is in a substantially improved C-61. I defer to Geist's blog ( http://www.michaelgeist.ca/ ) on pointing out what's wrong with C-61 in its current form. All Canadians who appreciates how copyright affects them should support reform for a more fairly balanced bill C-61. Geist's website has information on how Canadians can help reform C-61.

Now, before the critics say isoHunt.com is full of links to copyright infringing content and we should just pack up and leave. To which I'll summarize what our petition to the BC court is all about. isoHunt is a search engine of BitTorrent sites, and our sister sites are indices of direct user contributed .torrent links. None of the pieces of files exchanged over BitTorrent pass through our servers, they are exchanged over external P2P networks. We serve cached .torrent links to such files on P2P networks. Some of these files maybe copyright infringing, some aren't. But given the ridiculously long copyright terms in most countries of the world (which does differ) and that all creative media are copyrighted by default (in many countries), large majority of files exchanged on the internet would be copyrighted. That includes Linux ISO images and your videos of friends and family doing whacky things. The real question is are they infringing against the wishes of respective copyright owners. We make and run a great search engine here at isoHunt, but we unfortunately do not have the technology to mind read what are the wishes of all copyright owners, or who they are to begin with in association with the tens of millions of files on BitTorrent, to which we only indexes metadata links and not actual content files. Whatever copyright laws or safe harbor provisions provided in different countries, the only sensible and technically possible thing to do we've found is to take down links to allegedly infringing content only upon request and verification. This part of the US's DMCA is one which has much foresight and makes sense. (although not perfect obviously, it should add provisions for monetary punishment on erroneous notices as we receive plenty of ignorant or erroneous takedown requests and there isn't much recourse about them, but that's another topic)

The bottom line is we developed a search engine for BitTorrent protocols when it was still in its infancy, and even now it has not yet gained full mainstream use. We are on the cutting edge of emerging internet technologies, and I ask reasonable people of Canada and whoever else reading this to accept that it is not my wish for my websites and search engines to infringe rights of others. As all emerging technologies go, increasingly beneficial usage of BitTorrent will emerge with more widespread adoption by various parties. I'm referring to the US's Sony Betamax decision here; as the VCRs have been allowed to develop, enabling a new industry of videos playable at home, I plead that emerging technologies like BitTorrent and our web services be allowed that same chance to develop.

Attached are 2 documents we have filed at the BC court last Friday, one is our petition and the other my affidavit. The petition is more of an overview of facts, my affidavit is the supporting evidence. We petition the court preemptively for its guidance and clarification of our rights as an internet company, in hope that by laying out all the facts here early, we can make it easier for the court to cut to the heart of the legal issues. In some ways, this is a condensed summation of the core issues with our other MPAA lawsuit (which is still pending a decision on a Motion for Summary Judgment in the US).

Media inquiries can be mailed to media at isohunt.com. I understand that some news and comments have already been circulating online regarding this, hopefully I have cleared up some points.

UPDATE: To all of you who have voluntarily donated towards our obviously increased legal expenses without me even asking for them, my sincere thanks and gratitude. It shows that users of BitTorrent and isoHunt sensibly understands that not all things are free, that we are not here to pick a fight with copyright owners, and how much you care about isoHunt. But whether you are able to donate or not, most importantly we can use your simple support. Especially to Canadians, that you spread the word in raising awareness of the issues at stake concerning your ability to search, and in what ways we as consumers can do with electronics and media we buy. Please support our undoubtedly long legal battle, and in reforming bill C-61.

Here's a list of interesting discussions and stories regarding our case on other websites:
- http://torrentfreak.com/isohunt-sues-the-cria-to-legalize-bittorrent-sites-080905/
- http://digg.com/tech_news/isoHunt_Sues_the_CRIA_to_Legalize_BitTorrent_Sites_2
- http://tech.slashdot.org/article.pl?sid=08/09/07/239245
- http://www.p2pnet.net/story/16945

---
Gary Fung, aka. IH
President, isoHunt Inc.

Posted: Mon Sep 08, 2008 3:43 pm

This is excellent news in my opinion, the cause is very just. As a DJ and producer of audio i find bit-torrent the perfect vehicle of distribution. I find the money hungry actions of these corporations looking for control over all artistic creations abhorrent to the very fundamentals of art. I do believe artists should be compensated for their efforts but these organisations such as the CRIA are anything but progressive in nature, relying on ignorance of the technology to further line their already deep pockets.

I shall certainly be making donations to isohunt's legal funds!

Posted: Mon Sep 08, 2008 3:48 pm

That is one hell of a post! Lol. Some very decent points put across, but I think no matter what you do, you aint going to please. Just seems as you get yourself out of one hole, you walk stright into anotehr hole thats been waiting for you.
I would donate to your legal fee's guys, but i am strapped for cash as it is, got laid off a few weeks back from my job, so money is small and hard to come by at the minute. But mark my words, as soon as i get anything over £10, you guys are having it!

Good luck!

Posted: Mon Sep 08, 2008 4:05 pm

HBS wrote:

This is excellent news in my opinion, the cause is very just. As a DJ and producer of audio i find bit-torrent the perfect vehicle of distribution. I find the money hungry actions of these corporations looking for control over all artistic creations abhorrent to the very fundamentals of art. I do believe artists should be compensated for their efforts but these organisations such as the CRIA are anything but progressive in nature, relying on ignorance of the technology to further line their already deep pockets.

I shall certainly be making donations to isohunt's legal funds!

I think this is a good thing aswell and i will be helping the legal funds aswell.
There are many artists out there that put the songs on to the p2p network in order to promote their work and then thank p2p for huge sucess.

Posted: Mon Sep 08, 2008 4:11 pm

Some post, lots to read and think about.

IH wrote:

In October 2006, CRIA's anti-piracy department sent us a notice and takedown on certain songs. They included correct identification by URL's of .torrent links to files allegedly infringing their copyright. We took them down.

IH wrote:

The letters all used similar language, that our websites serve no other purpose but to infringe CRIA's copyrighted music.

As for taking down music torrents:

How is it, that a library can share?, a bar, a doctor's office or a store can play it? schools?, Internet sites such as Facebook, YouTube, Internet Radio, Festivals, Ebay can sell it?, Google can link to the music, Karaoke is ligit, just to name a few, as well as the mimicing bands in bars of the actual band, such as Practically Hip playing like Tragically Hip within Canada, etc., which is legit -- isn't it all a part of Free Trade as well in some form?! And parents have a right to listen to the songs before anything gets bought or brought within their homes as well, especially, if there are children in the home with regards to language, or even choices of words of phrases used.

According to Spetz & Spetz, "The Rule of Law, Canadian Business Law, Second Edition," if used for research, educational, critical review - there isn't harm within downloading the music, dvd's, games. and in other posts have mentioned other legalities of protection on downloading various things - aside from some .iso's (although, doing the odd one here and there is also a part of education and researching from what I'm catching onto), the fact that .mp3's aren't actually as quality as a real cd should also be taken into account.

Also with applied Marketing... is alright as a form of advertising for the actual interaction of showing one's skills and talents with people with putting on 'Concerts.'

As for CMCC - will have to check that out at some point.

IH wrote:

Copyright laws need reform for the 21st century

Totally agreed - but in which way are you referring to?

Isn't copyright infringement with respect to copying and profiting off another's work - leaving out the artist entirely(ei; reselling redone .iso's (which I'm assuming is why it's called IsoHunt? or so I assume) like, "Be Kind, Rewind," with Jack Black, that are easily accessable to getting)?

IH wrote:

I'm referring to the US's Sony Betamax decision here; as the VCRs have been allowed to develop, enabling a new industry of videos playable at home, I plead that emerging technologies like BitTorrent and our web services be allowed that same chance to develop.

Obviously, it has been invented for a reason. What about blank diskette companies, programs that are developed to do all the conversions, etc, sure there's more - do they get targeted too? As well, it's all a part of "UNNECESSETATED CAUSES OF POLLUTION!" - with regards to extra, unnecessetated packaging and etc., which is a group I tried to start on Facebook, but will eventually, make it's own website, once I get the time.

I'll sign your petition, anyhow.

Doubted the authencity of this post and now I know why. Well, if the cause was right...

Had to really read that one. Woah! Smile

Posted: Mon Sep 08, 2008 4:20 pm

CRIA, the MPAA, Viacom, and etc have been complaining and trying to get rid of P2P programs and services for years. Even if they sue numerous sites, file sharing will still be around. It will just be more of an underground thing, like most of it was. Today pretty much anyone can use torrents.

This isn't any different than from back in the 80's with tapes you could borrow from your friend and copy for yourself. This is no different than getting CDs from your friends and burning it to your computer for you. It's just on a much larger scale when it comes to P2P programs and torrents. Would the MPAA sue me if I gave my friend a CD I just bought for my friend to listen to and burn? I doubt because they don't seem to care about the little things like that. They are worried that people will only want to get it all for free, and their artists won't profit, therefore, they won't profit.

Posted: Mon Sep 08, 2008 5:16 pm

I just made a donation to the cause. Hope it helps.

Posted: Mon Sep 08, 2008 6:10 pm

for those of us who cant donate money, is there anything else we can do?

Posted: Mon Sep 08, 2008 6:58 pm

IH wrote:

This is one of the hardest decisions I had to make, to sue one of the most powerful lobby and corporate conglomerates in Canada. But for sake of continuing operation and development of isoHunt, this is something we must do. I don't pretend to speak on behalf of all BitTorrent websites or users, but I speak to point out that with a lawsuit from CRIA hanging over our heads, we fight not just for our survival as an internet company of search engines and social networks, but also for other websites, from BitTorrent sites to larger search engines like Google, on which most of us have come to depend. The legal ramifications concerning search engines and linking here are far reaching.

This is indeed very sad. I hope to keep in touch with everyone. Good luck with everything guys.

Wendy

Posted: Mon Sep 08, 2008 7:25 pm

I agree with you guys about how the government and there friends just want to ruin the net with censorship and when someone gets caught instead of being resonable they enslave that person with a debt they could never pay off. It sickens me that these people can still get away and yet they call us the evil ones.

Posted: Mon Sep 08, 2008 8:14 pm

Gary, Chip, Bren and all of my (former) friends at isoHunt,

I wish you all the very best. You are indeed taking a huge risk which has the potential to completely alter the search engine landscape. While Google defends itself in the USA against Viacom under very similar circumstances, I hope that isoHunt finds the answer that will allow the progress of Internet based technology in Canada. For the past 9 years since the popular origination of P2P with Napster's founding, there has always been a large cloud hanging over the providers who have no control over the content indexed and that provide solely a road map to its location. While the adversaries are well funded and would prefer to keep the distribution methods solely under their control, it fails to serve the public good in allowing innovation to flourish. There is a solution that can meet the needs of all parties, but as you have stated, sometimes the only way to get there is to ask for a definitive interpretation of the law.

Good luck.

Best regards,

Mark
(formerly of P2P IRC)

Posted: Mon Sep 08, 2008 8:23 pm

Good luck with the court case. If you need help...You got about 500,000 members here for ya Cool

Posted: Mon Sep 08, 2008 9:01 pm

I've donate for it

Posted: Tue Sep 09, 2008 1:55 am

Do you think they know they're about to get owned yet? :p

Posted: Tue Sep 09, 2008 2:27 am

rosehipzero wrote:

for those of us who cant donate money, is there anything else we can do?

I can see that it didint take long to get around...

http://torrentfreak.com/isohunt-sues-the-cria-to-legalize-bittorrent-sites-080905/
http://blog.wired.com/music/2008/09/reversal-of-mis.html
http://www.p2pnet.net/story/16920http://digg.com/tech_news/isoHunt_Sues_the_CRIA_to_Legalize_BitTorrent_Sites_2
http://forum.digital-digest.com/showthread.php?t=88807
http://computer-internet.marc8.com/isohunt-sues-cria-legalize-bittorrent-sites-0
http://www.torrentech.org/index.php?showtopic=40333
http://www.techmeme.com/080906/p21
http://www.slyck.com/forums/viewtopic.php?p=485949&sid=542d65d12347fd06c1a8b3300388d87e

And loads more

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