I. Introduction

On December 21, 2009, the United States District Court for the Central District of California granted summary judgment against isoHunt Web Technologies, Inc. and its principal, Gary Fung, for inducement of copyright infringement.1 isoHunt and its three companion sites2 (the “isoHunt Sites”) are online search engines used in conjunction with the BitTorrent file sharing protocol to download digital media such as music, movies and software. In comparing BitTorrent and isoHunt to previously-litigated file sharing technologies such as Kazaa and Napster, the court labelled isoHunt “nothing more than old wine in a new bottle.”

Over the coming months, the British Columbia Supreme Court will be seized of this matter in the context of the Canadian Copyright Act.3 What makes the Canadian case interesting in view of its U.S. counterpart is not any aspect of the decision itself (indeed, the action in Canada is still in its preliminary stages) but the mechanism through which it came to the courts: this time, isoHunt is the Plaintiff.

II. BitTorrent & The isoHunt Technology

Unlike traditional peer-to-peer services such as Napster, Kazaa and Gnutella, BitTorrent is not itself a computer application. It is a file sharing protocol that allows a user’s computer to read “torrent” files, which act as a blueprint for a user’s BitTorrent “client” software application to build a copy of a corresponding content file such as a video or MP3 audio.

The torrent files contain listings of “tracker” servers, which monitor other computers running BitTorrent that have all or part of a content file desired by the user, known as “seeders” or “peers.” Based on the data in a torrent file, the client application downloads various portions of the content file simultaneously from the various peer or seeder computers identified by the tracker. The client then constructs the content file on the user’s computer for playback. The user, now equipped with a full copy of the content file, becomes a seeder for other users.

BitTorrent users do not search for original content files themselves, since the content file is a reconstruction made up of different parts downloaded from a number of different computers. Instead, users search for a torrent file corresponding to desired content. “Torrent sites” such as isoHunt are search engines dedicated to listing locations of, and links to, torrent files. Most of these search engines do not store, link to or even locate actual content, copyrighted or not.

III. The U.S. Decision

In September 2006, a group of representative corporations from the U.S. recording industry launched a complaint against isoHunt and Mr. Fung. They claimed the isoHunt Sites infringed the Plaintiffs’ copyright in various movies, television shows, songs, video games and other content since the operation and promotion of the Defendants’ search engines allowed users to download infringing copies of the Plaintiffs’ works.4 The Plaintiffs’ evidence indicated that over 90 percent of torrent files downloaded from the isoHunt Sites related to copyrighted content.5

The court held that there was clear evidence that the Defendants’ sites solicited infringing activity; for example, isoHunt had a feature called “Box Office Movies,” which provided links to torrent files corresponding to the top 20 highest-grossing films in the U.S. in a given period.6 The isoHunt sites also included lists of the most commonly-downloaded movies and television shows, each of which contained links to further information about the movies in the lists, as well as message boards with posts from isoHunt moderators containing information on programs designed to “frustrate copyright enforcement against file sharers” and refences to “warez,” a slang term for infringing content.7 The court also found that the Defendants’ sites implemented technologies designed to facilitate infringement, and they generated revenue by selling advertising space “on the basis of the availability of works on [the] websites.”8

As a result of the substantial evidence proffered by the Plaintiffs, the court granted the Plaintiffs’ motion for summary judgment and held the Defendants liable for inducement of copyright infringement. The court further held that the Defendants were wilfully ignorant to infringement arising from the use of their sites and “turned a blind eye to ‘red flags’ of obvious infringement.”9  

IV. The Canadian Action

The lawsuit in the U.S. was, in a sense, “traditional” infringement litigation: a rights holder pursued an alleged infringer for violation of their intellectual property rights. Cease and desist letters sent by the Canadian Recording Industry Association (CRIA) in May of 2008 indicated that isoHunt and Mr. Fung faced an impending, similar lawsuit in Canada.10 As a pre-emptive strike, Mr. Fung filed a petition to the British Columbia Supreme Court on September 5, 2008 asking the court for a declaration that the isoHunt Sites do not infringe Canadian copyright laws. If successful, Mr. Fung would effectively preclude CRIA (or, for that matter, any copyright owner) from successfully suing isoHunt for infringement. In its petition, isoHunt argues that, once a user has secured a copy of the torrent file corresponding to a desired content file, the participation of the isoHunt sites is at an end, and “[w]hat happens thereafter depends entirely on the user and on the BitTorrent client software on the user’s computer.”11

Because all of the actual content files uploaded and downloaded using BitTorrent are between users, no copyrighted content or part thereof travels from or passes through the isoHunt Sites.12 Because it is tracker servers that locate the actual content and users themselves who actually exchange it, Mr. Fung states that the isoHunt sites are analogous to Internet search engines such as Google or Yahoo, which, as noted in the Petition, can also be used to locate torrent files.13 Further, whether a user actually acquires a copy of the desired content file depends on a variety of factors, none of which relate in any way to the isoHunt Sites. The petition also refers to a “take-down policy” used by the isoHunt Sites, which provides that isoHunt administrators will, on request by a copyright owner, remove torrent files corresponding to complained-of content from its indices.14

On March 11, 2009, CRIA and the other respondents to isoHunt’s Petition received an order from the court converting the petition into a full action with trial.15 The court stated that because this case deals with authorization of infringement, which raises questions of “knowledge and whether remedial action has been taken to prevent copying of copyrighted material”, disputes concerning material facts arise.16 The court considered several other issues, including whether or not the case would involve assessing the credibility of witnesses and whether or not the matter could be disposed of based solely on affidavit evidence. The court also noted that the conclusion of this case will “have wide ramifications” and should not be determined on a summary basis.17 Although Mr. Fung tried to appeal the decision, his application for leave was dismissed by the British Columbia Court of Appeal.18 isoHunt reissued its case in a Statement of Claim dated November 19, 2009.19

How these facts will play out in the Canadian courts is difficult to predict. Now that isoHunt’s petition has been converted to an action and the recording industry has the full forensic machinery of the courts available to it, the case will undoubtedly become much more complex than Mr. Fung and isoHunt originally intended, especially given the arsenal of evidence the Plaintiffs produced in the U.S. case. Canadian copyright laws vary wildly from those in the U.S., and the Canadian courts have, to date, been reluctant to embrace file sharing litigation in the same manner as their counterparts south of the border.20 Further, Mr. Fung may have to shut down isoHunt before the Canadian litigation concludes. This past May, the Plaintiffs obtained a permanent injunction from the U.S. District Court, enjoining the Defendants from, inter alia, “hosting, indexing, linking to, or otherwise providing access to any Dot-torrent or similar files that correspond, point or lead to any of the” Plaintiff’s copyrighted works.21 Even though the court did not order the site shut down completely and specifically sets out the activities from which the Defendants are enjoined, the nature of the isoHunt search engine and BitTorrent protocol technologies renders compliance with the injunction while maintaining the site practically impossible.22 One thing is, however, clear: the unprecedented pre-emptive strike by Mr. Fung and isoHunt sent a strong signal of resistance to the Canadian recording industry and will attract significant attention in the coming months.