isoHunt Seeks Declaratory Judgment In Canada On Legality Of Torrent Tracking

from the one-to-watch dept

You may remember that soon after the entertainment industry provided The Pirate Bay with a ton of free publicity by getting the site (oh so briefly) shut down, its next target was isoHunt, which similarly backfired. While isoHunt is still involved in litigation in the US with the MPAA, up in Canada, the Canadian Recording Industry Association (CRIA) has sent it a threatening letter demanding that it shut down. Similar threats have worked against other BitTorrent tracker sites, but isoHunt feels that it's on pretty firm legal grounds, and has filed a lawsuit against the CRIA, asking for a declaratory judgment that its service doesn't infringe on copyrights. It's using a similar explanation as its US lawsuit, noting that it's no different than a search engine. It also points out that when given evidence of infringing content, it takes down the related trackers -- which again should help put the site on pretty strong legal ground. While Canadian copyright law is different than US law, this is an important case to watch.


Reader Comments (rss)

(Flattened / Threaded)

  •  
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    Jake, Sep 8th, 2008 @ 8:19pm

    Hate to say it, but I can kind of see the MPAA's point. Is it even remotely credible that IsoHunt didn't know full well that its service's main use in actual practice would be to watch infringing content? I don't think a strict 'no questions asked' policy is, or should be, an adequate defence; extend the precedent to tangible goods, as it inevitably would be since the law treats tangible and intangible both alike, and convicting anyone of handling stolen property becomes almost impossible.

     

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      Tard, Sep 8th, 2008 @ 9:45pm

      Re: Jake

      > I can kind of see the MPAA's point

      Wrong. Technically everything on the net is subject to some sort of copyright. Everything from a hollywood movie to your web cam vid of you picking your nose. A search engine has no inherent way of determining if any given file transfer is "authorized" or not. So the MPAA wants to shut down ALL search engines. Sorry, that just won't fly.

       

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      Blaise Alleyne (profile), Sep 9th, 2008 @ 1:23am

      Re:

      Is it even remotely credible that IsoHunt didn't know full well that its service's main use in actual practice would be to watch infringing content?

      Yet, the country's national broadcaster has recognized this type of distribution as legitimate: CBC Plans to BitTorrent Its Own Program

      Clearly, there are important non-infringing uses.

       

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        Jake, Sep 9th, 2008 @ 7:33am

        It's not like they're a general-purpose search engine; they're set up to look for one specific file type. And I didn't mean to imply that there weren't legitimate uses, but surely it must have occurred to IsoHunt at some point that a significant percentage of the content it located -quite possibly an actual majority- would not be legitimate.
        Don't get me wrong; I think the MPAA's methods are underhanded and its viewpoint both dogmatic and fanciful. I just don't hold with wilful ignorance being a defence in court.

         

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          Anonymous Coward, Sep 9th, 2008 @ 9:49am

          Re:

          I have to wonder how many search engines host forums/comments that enable users to talk with each other and pass along information such as serial numbers for apps, locations for cracks, etc., or that have admins who openly discuss means for sharing files anonymously so that user activities can be shielded from prying eyes?

          isoHunt may be trying to make a principled stand on behalf of search engines in general, but its actions belie its arguments.

           

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            Mike (profile), Sep 9th, 2008 @ 11:23am

            Re: Re:

            I have to wonder how many search engines host forums/comments that enable users to talk with each other and pass along information such as serial numbers for apps, locations for cracks, etc.,

            http://groups.google.com/
            http://groups.yahoo.com/

            Oh look.

            or that have admins who openly discuss means for sharing files anonymously so that user activities can be shielded from prying eyes?

            Yeah, that never happens. http://googleblog.blogspot.com/2007/03/taking-steps-to-further-improve-our.html

            Oh, whoops.

             

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              Anonymous Coward, Sep 9th, 2008 @ 1:30pm

              Re: Re: Re:

              Having enabled comments for each indexed torrent so that parties can enjoy lively conversations such as serial numbers, cracks, etc., I daresay that isoHunt has shot at least one round in its foot.

              As for "preying eyes", it certainly does not help that its discussion about how it has moved server locations and set the site up for user anonymity appears in the very same thread where it is telling the world that its lawsuit is to "secure the blessings of liberty" for all search engines in general (BANG...round two in the foot).

              It will be interesting to see what happens because plainly the principals at isoHunt are their own worst enemies. They may know how to set up a search engine, but they sure as heck do not know much about keeping their mouths shut.

               

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                Mike (profile), Sep 9th, 2008 @ 3:59pm

                Re: Re: Re: Re:

                Having enabled comments for each indexed torrent so that parties can enjoy lively conversations such as serial numbers, cracks, etc., I daresay that isoHunt has shot at least one round in its foot.

                Yeah, how dare they provide useful features to their community?

                Wait... why is that illegal?

                As for "preying eyes", it certainly does not help that its discussion about how it has moved server locations and set the site up for user anonymity appears in the very same thread where it is telling the world that its lawsuit is to "secure the blessings of liberty" for all search engines in general (BANG...round two in the foot).

                Yeah, anonymity is bad and evil and illegal!

                Oh wait... it's not. So what's the problem again?

                It will be interesting to see what happens because plainly the principals at isoHunt are their own worst enemies. They may know how to set up a search engine, but they sure as heck do not know much about keeping their mouths shut.

                Yet you haven't shown how any of their actions are illegal. I don't see what the problem is.

                 

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          Mike (profile), Sep 9th, 2008 @ 11:16am

          Re:

          It's not like they're a general-purpose search engine; they're set up to look for one specific file type. And I didn't mean to imply that there weren't legitimate uses, but surely it must have occurred to IsoHunt at some point that a significant percentage of the content it located -quite possibly an actual majority- would not be legitimate.

          So we should throw out all the good that a torrent tracker does because some bad can be done with it? You've just banned pretty much all technology.

          I just don't hold with wilful ignorance being a defence in court.

          That's NOT the defense, though. The defense is that isoHunt is providing a platform, and you can't blame the platform for how it's used. That's just common sense.

           

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        Anonymous Coward, Sep 9th, 2008 @ 9:41am

        Re: Re:

        "Clearly, there are important non-infringing uses."

        True, but in such cases the rights holder has made a conscious decision to allow his/her work to be copied. The same can hardly be said for most music, movies, software apps, etc.

         

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          Mike (profile), Sep 9th, 2008 @ 11:17am

          Re: Re: Re:

          True, but in such cases the rights holder has made a conscious decision to allow his/her work to be copied. The same can hardly be said for most music, movies, software apps, etc.

          But that's not isohunt's issue, is it? How is isohunt supposed to know which stuff has been allowed and which hasn't? It's just providing a tool.

           

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            Anonymous Coward, Sep 9th, 2008 @ 1:16pm

            Re: Re: Re: Re:

            Actually, it is isoHunt's issue whether it likes it or not. Otherwise there would be no need for it to file for declaratory relief.

             

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              Mike (profile), Sep 9th, 2008 @ 5:29pm

              Re: Re: Re: Re: Re:

              Actually, it is isoHunt's issue whether it likes it or not. Otherwise there would be no need for it to file for declaratory relief.

              That's simply untrue, and I'm rather surprised that you, as a lawyer, would suggest such a thing. Does that mean that anyone who is threatened with legal action by a party is automatically responsible for it?

              Yikes.

              I'm honestly scared to know what law school taught you that.

              The point is that it's NOT isohunt's issue, because isohunt is the tool. Just like we don't blame Ford because people speed. And if someone were to threaten to sue Ford because people speed, Ford could similarly ask for a declaratory judgment that it's not liable.

              That doesn't mean it's "Ford's issue." It means some other idiot made it an issue. Same thing here.

              I'm surprised that you, as a practicing attorney, would think otherwise.

               

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                Anonymous Coward, Sep 10th, 2008 @ 12:56pm

                Re: Re: Re: Re: Re: Re:

                Disclaimer: I am well familiar with copyright law in the US, but can not say the same about this matter since it is governed by the law of Canada. If I ever need authoritative advice concerning Canadian law I secure the services of a Canadian attorney.

                This disclaimer now out of the way, my observations were merely anecdotal and not an analysis of Canadian law as it pertains to the activities of isoHunt. My first observation was nothing more than noting isoHunt is smack dab in the middle of this matter because it is pursuing a business model using a tool (yes, it is a generic tool like any other search engine) that clearly is being used by downloaders and uploaders alike to share copyrighted content. Even though the tool is suitable for non-infringing uses, this alone is generally not the deciding factor in cases such as this. Many other factors come into play, and it will be up to the court to receive evidence and issue a legal decision based upon the evidence.

                My second observation was merely to note that even seemingly innocuous things can pose problems, and you can be sure that the defendants in the suit will make note of them and many, many more.

                In the final analysis the case will be decided on the evidence presented. What that evidence will comprise is anybody's guess at this early juncture.

                 

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    Jason, Sep 8th, 2008 @ 9:19pm

    Then why aren't they targetting Google? Google lists all sorts of websites that do illegal things, but they haven't been sued like Isohunt, Pirate Bay, or any of the other file sharing search engines.

    There are many valid uses for torrents that are quite legal, there are also ones that are not so legal, or violate various copy writes but that is not the fault of the search engine because thats what it is.

    Edit: I just did a search for torrent and sure enough google gives me the results and I can find exactly what I was looking for.

    So why is one search engine deemed illegal because of the content it serves, yet others because they are large companies left alone?

    The provider is not liable for the items that are listed upon their site. Craigslist is not liable for a posting that contains illegal information. Ebay is not liable for illegal items that are posted. Newspapers are not liable for stolen goods being put in the classifieds, etc.

    Also specificially in the instance of isohunt, they were sent a takedown notice from the CRIA and they took down the infringing items. This has been going on for about two years for isohunt, besides for the initial takedown notice, which was followed they had no contact with the CRIA, until may of 2008 when they were issued cease and desist letters for all of their sites.

    To Quote the paragraph where they explain most of it.

    "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. "

     

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    Jesse, Sep 8th, 2008 @ 9:19pm

    Yea but how does this fit into the Canadian levy on blank media. It says right on Canadian copyright websites that you can copy a CD, purchased by someone else onto a blank CD, because you have paid the levy when you purchased the blank. Obviously, burning a CD requires it to be transfered through a computer. So what if you send it to a friend via MSN, or via a torrent. Then what?

     

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    Anonymous Coward, Sep 8th, 2008 @ 11:32pm

    +1 For ISOHUNT For standing up for all of us!!!

    Keep it up; we are with yoU!

     

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    Thugs and Mobsters, Sep 9th, 2008 @ 5:25am

    MPAA/RIAA are thugs and mobster

    Let's use another example:

    Is posting a list of sex offenders in your area and tracking them illegal? No. It's a list. It's public record.

    Is posting a list of drug dealers in your area and where they frequently sell for your community watch illegal? No.

    Is posting a list of war criminals and their supposed whereabouts and/or crimes illegal? No.

    So why is posting a link to someone doing something that may (or may not) be illegal considered illegal?

    I'll tell you why... because they have money to throw at lawyers, senators and judges.

    Remember remember the fifth of November
    Gunpowder, treason and plot.
    I see no reason why gunpowder, treason
    Should ever be forgot...

     

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    Jake Sweet, Sep 12th, 2008 @ 11:33am

    theft is theft

    Truth .. the people who are on board with file sharing are breaking the law.
    Someone somewhere has paid either with time, money or the sweat of their backs to create a product in the hopes of making some sort of income probably to put food on the table for their kids and family .. Big or small it is theft .. My personal opinion is that someone who creates the software to steal should be charged with conspiracy for being part of and allowing the theft.
    In the US it is illegal to posses a "bong" or other drug paraphernalia because it will be used in the commission of an illegal act. ISOHUNT and all other fileshare/tube sites should fall under the EXACT same style ruling

     

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      Mike (profile), Sep 12th, 2008 @ 7:44pm

      Re: theft is theft

      theft is theft

      Yes, and infringement is not theft.

      Truth .. the people who are on board with file sharing are breaking the law.

      No. That's actually false. The truth is that people who break the law are breaking the law.

      Someone somewhere has paid either with time, money or the sweat of their backs to create a product in the hopes of making some sort of income probably to put food on the table for their kids and family .. Big or small it is theft ..

      I'm not sure what someone having put time, money or sweat into things makes any difference here. People put time, money and sweat into lots of things that don't make money. Is that theft?

      My personal opinion is that someone who creates the software to steal should be charged with conspiracy for being part of and allowing the theft.

      Therefore, the entire internet is illegal. Your computer maker? Illegal. Photocopying machine? Illegal. VCR? Illegal. DVR? Get ready to go to jail...

      You see why that's a problem?

       

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      MrMajiX, Nov 3rd, 2008 @ 9:56pm

      Re: theft is theft

      Only if you call it a "bong".

      Look at these quotes:

      - "I did not have sexual relations with that woman..."
      - Clinton
      - "There are alot of people who lie and get away with it."

      - Rumsfeld
      - "We cannot wait for the final proof, the smoking gun."
      - Bush

      You can chalk this issue of torrent sites vs content infringement as another act du jour of the rampant ignorance and perpetual distraction that is this play called life.

      - "Most people go on living their everyday life: half frightened, half indifferent, they behold the ghostly tragi-comedy that is being performed on the international stage before the eyes and ears of the world."
      - Einstein

       

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    gsxr fairings, Nov 28th, 2008 @ 10:09am

    Oh well, once again we are witnessing a case were mostly the issue is who has the right to monitor the illegal activities and who would benefit more of this move.

     

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    Home Decor, Jan 9th, 2009 @ 12:37pm

    http://www.homedecorations.com/

    Hope that at the end all the groups affected by this situation receive a compensation for what they are loosing now.

     

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    Home Decor, Jan 9th, 2009 @ 12:39pm

    Meaning a lot of money!!

     

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