Rights holders expected to use ‘enabler’ provision to go after isoHunt, lawyers say

Rights holders are expected to use Bill C-11's new “enabler” provision to target Canadian torrent search engine isoHunt.com, legal experts say. Section 27 of Bill C-11, which received royal assent last Friday, includes an “enabler” provision for rights holders to sue web services for copyright infringement if their primary purpose is enabling copyright infringement. IsoHunt Inc., an Internet startup founded in 2003 by Gary Fung, an entrepreneur in Vancouver, B.C., is one of the world's leading BitTorrent search engines. Torrent news site TorrentFreak in January ranked isoHunt as the fourth most-visited torrent site in the world, behind first-ranked The Pirate Bay, Torrentz in second and KickassTorrents in third. “The provision is truly targeted to companies like isoHunt.com and some believe that it’s isoHunt, specifically, that was targeted,” Allen Mendelsohn, an independent Internet lawyer in Montreal, said in a phone interview. Mendelsohn said it will be difficult for isoHunt to get around the provision as research shows that more than 90 per cent of files shared through torrents infringe copyright. “It’s kind of hard to see how it’s going to get around that, to be honest,” he said. The BitTorrent protocol allows users to exchange files, often copyrighted movies and music, with others connected to a network of BitTorrent peers. A study of the protocol released in August 2011, carried out by Robert Layton and Paul A. Watters at the University of Ballarat’s Internet Commerce Security Laboratory, said 97.2 per cent of the most popular “real” torrents—meaning files that are not fake—were copyright infringing. The study said that “97.9% of BitTorrent use in our samples is nefarious in nature, either faked files, copyright infringing or criminally infringing.” Paul Spurgeon, general counsel and vice-president of legal services at copyright collective the Society of Composers, Authors and Music Publishers of Canada (SOCAN), agreed in a phone interview that the provision could cause a problem for isoHunt and sites like it. “If that site is, by means of the Internet, providing a service that’s primarily for the purpose of enabling acts of infringement, if that’s what they’re doing, then the section covers that type of activity,” he said. In May 2010, 26 music recording companies launched a lawsuit in the British Columbia Supreme Court against isoHunt and Fung for millions of dollars in damages. The lawsuit, which involves the Canadian Recording Industry Association (CRIA), now known as Music Canada, said isoHunt contributed to copyright infringement and sought damages and a court order to cease the site's operations. “The Defendants know of, or in the alternative are willfully blind of and indifferent to, the rampant copyright infringement conducted at and through the IsoHunt Websites,” the lawsuit claim said. In a response filed with the court Feb. 27, 2012, IsoHunt raised Charter issues with the lawsuit, and said neither the website nor the search engine ever hosts BitTorrent content “subject to a claim of copyright without the express authorization of the copyright holder.” The company also denied that the music companies “have suffered any damages or that the sales of the Plaintiffs’ Sound Recordings have decreased over time because of anything done by the Defendants in operating the isoHunt Website, the isoHunt Search Engine or any of the Defendants Other Websites,” the response said. “e realize the issues we are dealing with goes beyond mere copyright. Constitutional freedom of expression is at stake and it is time we call this into legal consideration properly,” isoHunt said in a Facebook posting a few days after it filed the court response. “Realize that this is not me supporting your right to 'pirate' movies and music (which may or may not be wishes of their creators). We are not The Pirate Bay, we honor copyright holders' wishes. However, we believe your freedom to search ALL media shared should not be restrained, regardless of what it is. Because this is what the Internet is about, sharing and expression without censorship,” the posting said. Amy Terrill, a spokeswoman for Music Canada, said it would be premature to comment on the impact of the enabler provision. In the U.S., isoHunt also faced a lawsuit from the Motion Picture Association of America (MPAA), which in 2010 resulted in a court injunction to prevent the site from indexing lists of movie titles or key search terms. Jason Kee, director of policy and legal affairs at the Entertainment Software Association of Canada (ESAC), whose organization supported the C-11 enabler provision, said in a phone interview that the bill will not apply retroactively. “Any existing lawsuits that are currently ongoing, or that are filed before that occurs, will not be subject to that provision,” Kee said. Kee said IsoHunt was identified by many people as a potential target for the new C-11 regime, but “any existing lawsuit would have to be re-filed if the parties wanted to apply the new provisions, as opposed to just tacking it on to the existing lawsuit.” According to Bill C-11, the Conservative cabinet, or governor-in-council, will issue an order specifying when the bill's provisions come into force. One copyright source with knowledge of the situation, who asked not to be identified, agreed that Music Canada's case against isoHunt must be decided under the law existing at the time the suit was filed. The source said Music Canada could use the enabler provision to launch a new lawsuit against isoHunt and that the chances of success would be "very high." "If any future litigation is needed, it will give CRIA a very strong case," the source said. Another industry source with knowledge of the bill said it was a "tremendous victory" for industry that the House of Commons amended the bill to remove the word "designed" from the enabler provision. An earlier version of the enabler provision said the web service operator must know or should have known that the service was “designed primarily to enable acts of copyright infringement if an actual infringement of copyright occurs.” The Canadian Independent Music Association (CIMA) in February told the House committee studying the bill that the word “designed” limited the provision and that it should be removed to make it easier to go after large-scale enablers. In an amendment to the bill, Conservative members on the committee removed the word “designed” and other wording that could have protected enabling services under the bill's “safe harbour” exceptions for online intermediaries. The final, passed version of Bill C-11 states that “it is an infringement of copyright for a person, by means of the Internet or another digital network, to provide service primarily for the purpose of enabling acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.” IsoHunt could move its service to an offshore location in an effort to avoid new lawsuits, the industry insider acknowledged. “They'll try and rag the puck as long as they can,” the source said. In a statement provided to The Wire Report through isoHunt's Facebook account, Fung said his company has been fighting lawsuits from CRIA and the MPAA for years and that he does not believe the “'enabler provision' or 'BitTorrent clause' on what the operator 'knows or should have known' are enforceable due to its vagueness and broadness.” Fung added: “Lest all search engines, not just isoHunt but Google, Bing, etc. be targeted as well. I've said many times before that contrary to appearance, isoHunt follows the DMCA notice and takedown procedures … we have worked with hundreds if not thousands of copyright holders in taking down allegedly infringing links, and will continue to do the same under the C-11 just like any other search engine or user generated content websites would.” Stéfanie Power, a spokeswoman for Industry Canada, said in an emailed statement to The Wire Report that the government considers online piracy to be a “serious problem” and that the bill gives copyright owners the tools to pursue those who enable online infringement. “It recognizes that the most effective way to stop online copyright infringement is to target those who enable and profit from the infringement of others,” Power said. “By allowing copyright owners to pursue these ‘enablers,’ such as illegal peer-to-peer file sharing sites, the Bill supports the development of significant legitimate markets for downloading and streaming in Canada,” she said. news@thewirereport.ca

Rights holders expected to use ‘enabler’ provision to go after isoHunt, lawyers say

Broadcast | July 5, 2012

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