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Canadian industry’s isoHunt lawsuit comes to the surface

By | Published on Wednesday 16 February 2011


The Canadian record industry has launched a lawsuit against Canada-based file-sharing service isoHunt. Well, actually it launched the suit last May, but the legal action has come to public attention now via a blog post by Michael Geist.

isoHunt is one of the biggest BitTorrent services on the internet. The movie and music industries say that the service exists primarily to enable copyright infringement and that the company that operates it, and its founder Gary Fung, are therefore guilty of contributory infringement. Fung, for his part, denies liability, mainly using the usual “but we don’t host any of the infringing files, I’m just like Google” argument that has generally failed in most of the big file-sharing court cases.

In his home country of Canada, Fung took the unusual approach of tackling his accusers in the music industry by suing them, looking for judicial clarification that isoHunt’s operations did not constitute copyright infringement. In various jurisdictions, including the US, Australia and Sweden, that argument would almost certainly fail, but Canada’s current copyright laws are a bit hazy on all things file-sharing, so a finding one way or the other isn’t assured.

Last May’s lawsuit by the Canadian record industry was in essence a countersuit to Fung’s action. It aims to have isoHunt shut down while also suing for in the region of $4 million in damages for past infringements. A similar earlier lawsuit pursued by the US movie industry was successful, forcing isoHunt to introduce filters that block file titles similar to movie names, though that was under American copyright law where there are more precedents on this.

Much was being made on various tech blogs and websites yesterday about the fact that the Canadian record industry has not talked much about this lawsuit, despite it being launched last summer. Some suspect that is because the Canadian record labels are currently busy lobbying for a reform of copyright law in Canada, arguing that under the current system it is impossible for content owners to target file-sharers and companies that enable file-sharing. The fact a lawsuit is currently working its way through the courts arguing its case under existing Canadian copyright rules possibly contradicts that claim.

That said, I’m pretty sure we knew the Canadian record industry was planning on countersuing Fung already, and it is true that contributory infringement lawsuits of this kind are less clear cut under the Canadian system, where you’re actually relying on the less wide-ranging English law concept of authorising infringement. The labels’ lawyers may rely on the ruling in the Kazaa case in Australia – also an ‘authorising infringement’ case – though Canadian courts have a history of interpreting the concept of authorising less widely than those in Australia.