isoHunt and p2pnet: in the same boat
p2pnet news view Freedom | P2P:- isoHunt president Gary Fung and I have four things in common.
- We’re both based in British Columbia, Canada, with Vancouver addresses. He, however, is in the city of Vancouver on the mainland, and I’m on Vancouver Island, 1.5 hours away by ferry.
- We’re both being sued for linking. Gary is accused of remote copyright infringement by default, and I’m being accused of remote defamation by default
- Both our cases will set precedents and although I’m being sued by only one person, Vancouver businessman Wayne Crookes, the results of my case will have a direct impact on Google and the Wikipedia, among other large online entities. Gary, on the other hand, is under attack by Vivendi Universal, EMI, Warner Music and Sony BMG via their CRIA, with all that implies for the distribution of music online.
- Whichever way they’re decided, both cases will have a major impact on freedom of speech and freedom of the Net not only here in Canada, but elsewhere.
In a major first, “Canadian BitTorrent and P2P search engine isoHunt has become the first such site to go from defense to attack in the online file-sharing wars, p2pnet posted on Saturday.
In the hot seat are the EMI Music Canada, Universal Music Canada/Musique Universal Canada, Sony BMG (Canada), Warner music Canada and the CRIA (Canadian Recording Undustry Association).
I also said »»»
In another landmark first-of-its-kind case centering on hyperlinks, p2pnet is waiting for a BC court to rule on whether or not linking to a site containing allegedly defamatory material constitutes publication of the material and, in effect, defamation by default.
Vancouver businesman Wayne Crookes claims p2pnet defamed him when it linked to sites containing articles which, well, defamed him, he says.
“If he wins, it’ll be quite literally the end of online freedom of speech in Canada,” said the story.
“Without hyperlinks, the World Wide Web would be nothing but a sterile series of computers.”
Gary and have decided to find a way to work together on this, but in the meanwhile, here’s what he has on isoHunt »»»
This is one of the hardest decisions I had to make, to sue one of the most powerful lobby and corporate conglomerates in Canada. But for sake of continuing operation and development of isoHunt, this is something we must do. I don’t pretend to speak on behalf of all BitTorrent websites or users, but I speak to point out that with a lawsuit from CRIA hanging over our heads, we fight not just for our survival as an internet company of search engines and social networks, but also for other websites, from BitTorrent sites to larger search engines like Google, on which most of us have come to depend. The legal ramifications concerning search engines and linking here are far reaching.
For a better understanding of what brought us here, this is a brief history of our dealing with the CRIA (Canadian Recording Industry Association).
In October 2006, CRIA’s anti-piracy department sent us a notice and takedown on certain songs. They included correct identification by URL’s of .torrent links to files allegedly infringing their copyright. We took them down.
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.
Here lies some great ironies. We have had cooperation from various music companies and associations in other countries in issuing notice and takedowns for links to their respective infringed content, some of which are the same international companies that CRIA represents. Some of their copyright agents have made blunders in misidentifying links, like requesting takedown of links that look very much like porn, based on colorful vocabulary in their filenames, or at least we were pretty sure were not music files based on some of their file extensions. But we move on after rejecting such obviously erroneous requests. But CRIA’s blatant ignorance of their very own past takedown practices which happened to be proper and correct just because they want to sue us, illustrates the importance of ISP safe harbor provisions in the new bill C-61 for the survival of whole classes of internet websites and search engines.
No wonder why a group of prominent Canadian artists and labels formed the CMCC, broke out of CRIA and told them, “not in our names” ( http://www.musiccreators.ca/wp/?p=231 ). This is why Canadians who care about music should support artists in the CMCC group, those who doesn’t want to sue their fans, those who are trying to find ways for fans to share in our new world online that can fairly compensate their work, and those who actually make good music. At least I’m a fan of some on the CMCC’s artists list.
Before you think I’m trying to rally a riot against copyright, I want to reiterate our stance that we do believe in Imaginary Property (IP) because imagination takes effort, and realizing them through music or videos or games takes more effort, time and money. Copyright laws need reform for the 21st century, and my hope as a Canadian is in a substantially improved C-61. I defer to Geist’s blog ( http://www.michaelgeist.ca/ ) on pointing out what’s wrong with C-61 in its current form. All Canadians who appreciates how copyright affects them should support reform for a more fairly balanced bill C-61. Geist’s website has information on how Canadians can help reform C-61.
Now, before the critics say isoHunt.com is full of links to copyright infringing content and we should just pack up and leave. To which I’ll summarize what our petition to the BC court is all about. isoHunt is a search engine of BitTorrent sites, and our sister sites are indices of direct user contributed .torrent links. None of the pieces of files exchanged over BitTorrent pass through our servers, they are exchanged over external P2P networks. We serve cached .torrent links to such files on P2P networks. Some of these files maybe copyright infringing, some aren’t. But given the ridiculously long copyright terms in most countries of the world (which does differ) and that all creative media are copyrighted by default (in many countries), large majority of files exchanged on the internet would be copyrighted. That includes Linux ISO images and your videos of friends and family doing whacky things. The real question is are they infringing against the wishes of respective copyright owners. We make and run a great search engine here at isoHunt, but we unfortunately do not have the technology to mind read what are the wishes of all copyright owners, or who they are to begin with in association with the tens of millions of files on BitTorrent, to which we only indexes metadata links and not actual content files. Whatever copyright laws or safe harbor provisions provided in different countries, the only sensible and technically possible thing to do we’ve found is to take down links to allegedly infringing content only upon request and verification. This part of the US’s DMCA is one which has much foresight and makes sense. (although not perfect obviously, it should add provisions for monetary punishment on erroneous notices as we receive plenty of ignorant or erroneous takedown requests and there isn’t much recourse about them, but that’s another topic)
The bottom line is we developed a search engine for BitTorrent protocols when it was still in its infancy, and even now it has not yet gained full mainstream use. We are on the cutting edge of emerging internet technologies, and I ask reasonable people of Canada and whoever else reading this to accept that it is not my wish for my websites and search engines to infringe rights of others. As all emerging technologies go, increasingly beneficial usage of BitTorrent will emerge with more widespread adoption by various parties. I’m referring to the US’s Sony Betamax decision here; as the VCRs have been allowed to develop, enabling a new industry of videos playable at home, I plead that emerging technologies like BitTorrent and our web services be allowed that same chance to develop.
Attached are 2 documents we have filed at the BC court last Friday, one is our petition and the other my affidavit. The petition is more of an overview of facts, my affidavit is the supporting evidence. We petition the court preemptively for its guidance and clarification of our rights as an internet company, in hope that by laying out all the facts here early, we can make it easier for the court to cut to the heart of the legal issues. In some ways, this is a condensed summation of the core issues with our other MPAA lawsuit (which is still pending a decision on a Motion for Summary Judgment in the US).
Media inquiries can be mailed to media at isohunt.com. I understand that some news and comments have already been circulating online regarding this, hopefully I have cleared up some points.
UPDATE: To all of you who have voluntarily donated towards our obviously increased legal expenses without me even asking for them, my sincere thanks and gratitude. It shows that users of BitTorrent and isoHunt sensibly understands that not all things are free, that we are not here to pick a fight with copyright owners, and how much you care about isoHunt. But whether you are able to donate or not, most importantly we can use your simple support. Especially to Canadians, that you spread the word in raising awareness of the issues at stake concerning your ability to search, and in what ways we as consumers can do with electronics and media we buy. Please support our undoubtedly long legal battle, and in reforming bill C-61.
Stay tuned.
p2pnet – isoHUNT sues record labels’ CRIA, September 6, 2008
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September 9th, 2008 at 5:31 pm
“None of the pieces of files exchanged over BitTorrent pass through our servers, they are exchanged over external P2P networks. We serve cached .torrent links to such files on P2P networks. Some of these files maybe copyright infringing, some aren’t.”
By ‘these files’, hopefully Gary refers back to the file parts exchanced over BT.
Interesting to know if it is even possible to copyright metadata / computer generated data like torrents, pars, hashes ect.
September 9th, 2008 at 7:22 pm
That’s what I’ve always wondered. Of all those people in the UK getting sued for sharing some crappy video game, and if all they uploaded were little useless pieces to be caught, does this make them automatically liable? This especially goes for the fact that your IP just has to be in the tracker’s pool for that specific torrent for them to identify it. This would also mean that people who never even finished the torrent can be held liable.
September 9th, 2008 at 8:14 pm
It’s not just that. Torrents don’t have a single donor. They are seeded with bits and pieces from all over from lots of different contributors within the torrent stream. So which one infringed? How much did they infringe? Was it small enough to be considered fair use? There is not one single contributor in most of these but multiple users. It has often been referred to in US courts that the one complaining has to show, the file was downloaded (meaning transfer took place) as well as financial damage amounts. Something the alphabet orgs have been playing fast and loose with, by using statutory damages instead.
Notice what seems to be the undercurrent theme here. The idea “we don’t want to put in the effort to police sites for infringement”. They want you to do that, each and every site owner. So DMCA has a barb in it they would rather not deal with. A commonly sought scheme each and every time they start making legal theories.
However, none of the major labels have made it easy to identify any of their “owned works”. They have immensely complicated the issue by making labels for the star artists when they reach a certain point of recognition or sales. They don’t generally make that info public. So you never know what label owns what, if it is connected to a major label, and is often hard to tell if it is even under copyright in the sense there is no info on it. The majors have gone to great lengths to remove the identifications for many reasons. Acknowledgment of funding and possibilities of owing artists are some of the reasons. If an artist can’t come up with the data, then it is far harder to make a claim. If total income can’t be verified in some manner, no one can counter argue that business is other than the labels claim. All this vagueness now bites them on the butt, as no one but them can properly identify which items belongs to them and which does not. Even the Magnetic site that attempts to identify what is owned property by the majors has problems with this.
If it is that hard to identify what is owned property, by whom, for whom, how can any run of the mill citizen with an on-line site be able to do so? Saying you ought to know, doesn’t identify which is which nor make the job any easier. Being as this is the case, only the labels themselves know this info and they are not parting with that info up front unless by complaint to isolated individuals, whom do not collectively share all info, the average site owner has no clue to what is owned by whom and no way to identify them. This leaves it right back to the labels themselves having to do that job, no matter how much they might hate the idea of paying someone to do that.
September 9th, 2008 at 8:51 pm
“I’m being sued by only one person, Vancouver businessman Wayne Crookes”
Does this mean that Hemming has dropped her suit over P2Pnet’s anonymous user comments?
September 9th, 2008 at 9:24 pm
Well actually I don’t classify .torrent files as links. They only provide the address of the tracker. In no way does it provide a link to a guaranteed full copy of a copyright work. It’s a ludicrous supposition to hold anyone other than the host as responsible; not that I even agree with copyright and patent laws, but that’s a different story.
September 9th, 2008 at 10:16 pm
Jon, couldn’t it be argued that linking is the same as aiding and abetting an illegal act?
One could make an analogy with giving someone the key to a safe, so that the other person can grab the gun and commit murder. In this case, both are guilty. Why is this different?
For all our sakes, I’d love to be wrong on this one – and hopefully I am.
September 10th, 2008 at 12:53 am
Another legal theory the alphabet orgs would love to see established and would give their eye teeth for. Third party infringement liability. If I lay a book on a coffee table, walk out of the room, you come along, pick it up, leaf through it or read it, are we both liable for infringement? If so, there are tons of waiting rooms in doctors’ offices that are in dire peril from magazines and third party infringement.
I don’t see a lot of difference here between the links on the net for torrents and the magazines, other than moneyed influences and self-interest. You figure if the magazines were rolling in dough, they would try the same?
September 10th, 2008 at 8:24 am
@ “Does this mean that Hemming has dropped her suit over P2Pnet’s anonymous user comments?”
No. That’s still active. For anyone who doesn’t know what this refers to, http://news.bbc.co.uk/2/hi/technology/5230776.stm
Cheers!
September 10th, 2008 at 10:01 am
Free Thinker: I’m not sure your analogy works. Murder is a far more serious crime. That seriousness is the reason one can be held responsible for a murder and most any death, even if the part played was without consent or even knowledge (degrees of murder, manslaughter, etc). Most feel this is reasonable seeing as a person (or persons) have paid with their life. Death, whether by design or by negligence, is a very serious thing and I don’t think simple ideas such as copyright and defamation come anywhere close to that. I guess it all comes down to liability and whether or not it is reasonable for a third party to pay for a petty crime committed by another, especially in situations where that third party was acting in good faith. You also have to ask yourself, ‘Where does it end?’. A government can decide to make all kinds of laws which make it’s citizens liable for just about everything under the sun, but should they? It is very easy to get carried away when it comes to determining liability and playing the blame game. We must not let emotion overrule our judgment and ability to reason logically.
My turn for an analogy. Say a total stranger steals your car and kills someone with it. Are you responsible? You would probably say no at this point. How about if you left the keys in the ignition? Does that make you more liable? How about if it was because you honestly forgot the keys in the ignition, something that normally never happens. How liable should you be then? Who gets to dictate how liable, how guilty YOU are? Should it be the family of the person killed? Some would say yes to that. When it comes to determining liability, things tend to become complicated very quickly. Some folks in the government don’t want to even touch these matters and it is not hard to see why. Others barely skim the surface, wanting to create new laws haphazardly without actually understanding what the people want or what is at stake here. These are dangerous waters we’re in and we must navigate them very carefully.
September 10th, 2008 at 4:52 pm
Thanks Reasonable Person. Your analogy and arguments were very good.
I guess that the get-out clause for isohunt and other torrent sites, are that they remove links to the infringing content when told about them. Thereby maintaining supporting there argument that they have substantial non-infringing uses. Not sure what will happen to The Pirate bay eventually unfortunately, as they openly want to stick it to Big Media. Even though their site is not currently illegal in Sweden, I wonder how long it will be until the American Corporate Government twists their arm into making it illegal?
Naturally, Big Media wants to crush isohunt and any other site like it regardless of other legitimate uses, because they want to maintain their old, outdated business model. This has been discussed to death on p2pnet and other sites, so no need to go over it again.
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