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Canadian judge raises legality concerns over torrent index

By | Published on Friday 13 March 2009

The Canadian courts have not been especially kind to the music industry in their fight against online file-sharing – with one judge once saying the country’s copyright laws didn’t actually make the sharing of unlicensed content online illegal at all – but a judge in British Columbia has refused to rule in favour of a major BitTorrent tracker without a full trial to consider the legalities of what the service does.

Possibly encouraged by those past Canadian court rulings with regards P2P file sharing, the owner of one of the most popular Torrent indexing services, isoHunt, which provides links to over 1.5 million BitTorrent sources of content, much of it unlicensed, went to court himself to ask for a ruling that his operation did not contravene the country’s copyright laws.

Such a ruling would, of course, stop the record companies from taking action against him, and would presumably help him raise investment and sell advertising. Aside from the Canadian court’s history of being ambivalent towards file-sharing, isoHunt founder Gary Fung also presumably wheeled out the usual defence of indexing and tracking services – that he doesn’t himself host any illegal content, he merely links to it.

British Columbia Supreme Court Judge Victor Curtis didn’t say that Fung was acting illegally as such, but he refused to provide the declaration the Torrent man requested, saying a full trial would be required to assess the legal status of isoHunt.

Curtis also raised some concerns regarding the service, comparing isoHunt to a gun seller (perhaps the word ‘hunt’ stuck in his head) and arguing that Fung, like a gun dealer, isn’t liable whenever a customer uses his services (or guns) for illegal purposes, but can be held responsible to a certain extent if he knows a customer’s intentions are illegal when providing the service (or gun). Basically he was saying Fung may be guilty of so called ‘authorising infringement’ and a full hearing would be needed to consider that fact.

Whether that means the Association Of Canadian Gun Dealers will now come out in support of Fung we don’t know. Nor do we know whether Fung will now, in fact, request a full trial or, instead, go and hide in his gun cupboard and wait for a new barrage of cease and desist letters to arrive.