B.C. court case has potential to make Google, Yahoo illegal in Canada

By Vito Pilieci, The Ottawa CitizenMarch 17, 2009

OTTAWA — A court case in British Columbia has the potential to drastically change the Canadian Internet landscape by making search engines such as Google and Yahoo illegal.

A case brought against the Canadian Recording Industry Association (CRIA) by a small search engine for BitTorrent files, called ISOHunt Web Technologies Inc., is raising questions about whether search engines are liable for the sharing of copyright-protected content online.

The question before the British Columbia Supreme Court is, if a site like ISOHunt allows people to find a pirated copy of Watchmen or The Dark Knight, is it breaching Canadian copyright law?

“It’s a huge can of worms,” said David Fewer, acting director of the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa.

“I am surprised that this litigation has gone under the radar as much as it has. I do think this is the most important copyright litigation going on right now.”

ISOHunt helps people search through more than

44 million BitTorrent files available on the Internet to find the movies, TV shows, software and music they may be looking for. The company does not store the files, nor does it work directly with people offering the files for download.

The search engine boasts more than 20 million regular users.

After receiving numerous legal threats from CRIA, the B.C.-based company decided to take matters into its own hands. In September, the company filed a petition with the B.C. court asking a judge to rule on whether ISOHunt was in breach of Canadian copyright law. The case was heard last week.

In his argument, ISOHunt’s lawyer Arthur Grant — of the firm of Grant Kovacs Norell Barristers & Solicitors — used Google to show the judge how the world’s most popular search engine can be used to find many of the same questionable files available on ISOHunt.

“Anybody can. Do it yourself,” he said. “ISOHunt is a search engine and it operates no differently than Google. The difference is Google searches every file type under the sun.”

When contacted Monday, officials for Google Inc. declined to comment on the ISOHunt case saying the company has not been officially named in the lawsuit.

CRIA argued that the petition should be converted into a full action court case. The judge agreed on Wednesday, saying a full court case will be necessary to decide the matter. Both sides are now preparing for a lengthy court battle.

Despite repeated attempts on Monday, no one from CRIA returned phone calls.

The litigation will mark the second court battle that ISOHunt finds itself fighting. The company is currently locked in a bitter dispute with the Motion Picture Association of America over similar copyright issues.

The company has repeatedly argued that much like case of Betamax versus Universal Studios, ISOHunt cannot be deemed illegal simply because it has the potential to be used for questionable purposes. In 1984, courts in the U.S. ruled that people can use their VCRs to record TV shows and that the manufacturers of the VCRs cannot be held liable for copyright infringement.

BitTorrent, a system for sharing files on the Internet, is routinely used for the distribution of non-copyright infringing files. In March last year, the Canadian Broadcasting Corp. used a BitTorrent service called Mininova to distribute the show Canada’s Next Great Prime Minister over the Internet.

However, the technology has caught the attention of various movie and music groups globally because it has been used to share films while they are still in theatres and CDs prior to their release date. The Dark Knight became the most pirated movie in history after people found a copy of it through a BitTorrent search engine while it was still in theatres. In December, a man from Los Angeles pled guilty to uploading Guns N’ Roses latest album Chinese Democracy to the Internet, which numerous people then found through search engines such as ISOHunt, months before it hit store shelves.

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