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The case against isoHunt Add to ...

On its cluttered home page, Vancouver-based isoHunt.com doesn't exactly look like a mortal threat to the multibillion-dollar movie and recording industries. One of its small number of rotating ads offers communication with "Busty Russians," just a click away.

But in fact, this is one of the Web's most-used search engines for BitTorrent, or "peer-to-peer" files, which people use to find free digital copies of movies and music.

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IsoHunt has been labelled a copyright outlaw by the Office of the U.S. Trade Representative, which, in its recent "Notorious Markets" list, ranks it among the top 300 most popular websites of any kind in the world.

Launched by Vancouver's Gary Fung in 2003, isoHunt has become a poster child for the portrayal of Canada as a safe harbour for copyright pirates. Other BitTorrent sites have been closed after legal action, and isoHunt may suffer the same fate: It has become a magnet for legal threats and lawsuits, and could face having to pay millions of dollars in potential damages.

The site has also become a flashpoint, both in Canada and the United States, in the debate about copyright in the digital age. Here, the case has become ammunition in the fight over Bill C-32, Ottawa's contentious proposal to amend the Copyright Act. And in the United States, a court fight over the relatively obscure Canadian site, which argues that it is merely a search engine, has attracted attention from Web giant Google Inc.

IsoHunt is facing litigation on both sides of the border. In 2009, a California judge sided with Columbia Pictures Industries Inc. and other Hollywood studios in a lawsuit against the site, saying isoHunt violated U.S. copyright laws. In Canada, the site is locked in a court battle with the Canadian Recording Industry Association (CRIA) and major record labels, which are demanding it be shut down.

In its court filings in the United States and Canada, IsoHunt says it is not responsible for infringing copyrights; that it, like Google, merely helps users to find files on the Internet. It also says it removes links to copyrighted material when asked to do so.

Canadian and U.S. law both include provisions exempting things such as Internet service providers and search engines from liability for copyright violations, provided they do not induce or authorize violations.

But isoHunt's opponents have argued in court filings that 90 per cent of the files accessed through the site were under copyright. And they say the site's features - such as lists of links to current hit movies - clearly encourage illegal downloading.

CRIA has been vocal in its calls for stricter rules in Canadian copyright laws to crack down on sites such as isoHunt. But University of Ottawa law professor and prolific blogger Michael Geist has accused CRIA of purposely keeping quiet its lawsuit against isoHunt, even as it calls for reforms to the copyright law.

"It has the feel of doing and saying one thing and then doing something else," Dr. Geist said in an interview. "Claiming that the site's causing enormous harm, claiming that Canadian copyright law can't deal with it and so we need changes to the law - and at the same time filing repeated court documents that claim that the site is operating illegally under the law as it stands today."

He said the industry did not want to highlight the fact that it was making use of the current law, in order to keep up pressure up on the government to reform it: "I think they waited and they kept it hidden because they wanted to paint Canada as a piracy haven and use it as a method to encourage the government to move forward with copyright reform."

Mr. Geist's comments about isoHunt have not gone down well with Toronto lawyer Barry Sookman, an intellectual property and technology expert with McCarthy Tétrault LLP. The firm represents CRIA in its legal fight with isoHunt.

Mr. Sookman, also a prolific blogger on copyright issues, said Dr. Geist's comments on the isoHunt case are "misleading." CRIA's lawsuit, the lawyer said, was actually filed in response to an action started by isoHunt itself in the B.C. Supreme Court in 2009. IsoHunt made that pre-emptive move after getting "cease-and-desist" letters from CRIA, and decided to try to have its business declared legal under Canadian copyright law.

"It's absolutely clear that IsoHunt started this, and the recording industry was simply defending [itself]" Mr. Sookman said in an interview.

Mr. Sookman also denied that anything was done to keep the isoHunt litigation quiet: "You can't privately start an action. It's public, and the information is available, publicly available."

Dr. Geist insists the details of who filed suit first are irrelevant to his larger point about whether the recording industry believes Canada's current laws are strong enough to close sites that violate copyright. "At the end of the day, you can focus on timing or you can focus on what the arguments actually are."

The U.S. case has so far gone decisively against isoHunt. In December, 2009, a summary judgment from the District Court for the Central District of California - a decision issued without a trial - declared IsoHunt no different than long-dead file-sharing sites such as Napster as Kazaa, saying it was "nothing more than old wine in a new bottle."

The world's largest search engine, Google, has chosen to intervene in isoHunt's appeal of the ruling against it. (Google is embroiled in a similar battle over what exemptions search engines are entitled to in the court fight between YouTube, which Google owns, and Viacom, over copyrighted content.)

In a 39-page brief filed last month in the appeal court, Google's lawyers argue that while it supports the judgment against isoHunt, the ruling goes too far in its condemnation of some of isoHunt's functions as a search engine.

"While in agreement with the result reached in this case, Google is concerned that some of the reasoning offered by the district court (and by the plaintiffs) goes too far and would upset the careful balance between copyright protection and technological innovation struck by the Supreme Court and Congress," Google's brief reads.

Despite the heated debates, Canada's current copyright law may stand unaltered for a while yet. If a spring election is called, Bill-C32 - like two earlier attempts at copyright reform since 2005 - may die on the order paper.

"I don't think anybody disputes that Canadian law should be able to deal with clear-cut piracy sites," Dr. Geist said. "The only question seems to be whether the current law can deal with it."

Follow on Twitter: @jeffreybgray

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