Kill Bill C-11 Volume 1: Goodbye isoHunt?

Late last week, the Conservative Government introduced Bill C-11 to the House of Commons. Bill C-11 is the Canadian Government’s fourth attempt (one Liberal, three Conservative) to update Canada’s Copyright Act for the modern technological age. (Did you know under current copyright law it’s technically illegal for you to DVR programs to watch them later? Yeah, the law needs updating). Over the next weeks and probably months I’ll take a look at how the Bill’s provisions would affect the internet. If you want an overview of the Bill, Barry Sookman just posted a good summary, and Geist is always good, though his focus on digital locks (a significant part of copyright reform) has bordered on obsessive for several years now.

After the jump, I’ll look at how one of the new provisions could spell the end of one of the most useful sites on the internet, and a personal favourite, isoHunt.

If you haven’t heard of it, isoHunt is a torrent search engine. In fact, it may be the largest torrent search engine in the world. And it is based in Canada (though they also have servers in Sweden). isoHunt claims that there are over 12 million searches for torrents on its site per day. That alone should tell you how torrents are taking over the world.

Bill C-11 contains a new provision that would be added to the Copyright Act [s.27(2.3) if you care] that would make it copyright infringement for anyone who provides a service that “enables” copyright infringement. At the risk of alienating you with legal stuff, let’s blockquote the provision in its entirety:

It is an infringement of copyright for a person to provide, by means of the Internet or another digital network, a service that the person knows or should have known is designed primarily to enable acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.

Yes, lawmakers can blather like idiots. So does isoHunt fit the bill? Let’s break it down. isoHunt is certainly on “the Internet”. isoHunt is certainly “a service”. Is isoHunt “designed primarily to enable acts of copyright infringement”? Well that’s when things get messy.

Gary Fung, founder of isoHunt, would most certainly say no. He has repeatedly pointed out (here, for example) that his site has a takedown policy, meaning that if a copyright holder tells him his site links to copyrighted materials, he will take it down. isoHunt also does not act as a tracker, the server out there on the internet that helps you download via torrent. As Fung (correctly) points out, his site is just a search engine. It hosts no files, either the original media files or the .torrent files you need to make your torrent client go. Google can be used to find torrent files just like isoHunt; all you need to do is add “filetype:torrent” to the beginning of your search query. Go ahead, try it. I’ll wait.

The only problem comparing isoHunt to Google is that Google is not primarily designed to find torrent files; it’s primarily designed to find anything. isoHunt is primarily designed to find torrent files. But can you then make the next step – does that mean it’s primarily designed to enable copyright infringement?

The problem (for isoHunt) is that almost all files that are downloaded via torrent are copyrighted. Some studies have pegged the proportion of copyrighted files exchanged via torrent at 99%. Fung likes to argue that his site helps find all sorts of torrent files, not just ones that get you copyrighted materials. While technically he’s correct, if 99% of the files are copyrighted, that pretty much means it’s primarily enabling copyright infringement. I have no doubt that the Government and the copyright holders would see it the same way.

Interestingly isoHunt, at first glance, might actually be saved by the same Bill C-11. The Bill contains an exception for search engines, that they will not be liable for copyright infringement if they are just acting as search engines. While the Bill calls them “Information Location Tools”, their definition clearly marks them as search engines, or at least would include search engines:

any instrument through which one can locate information that is available by means of the Internet or any other digital network

So could this save isoHunt? Well unfortunately the Government thought ahead, and specifically said the search engine (ok ok, Information Location Tools) exception does not apply when our section 27(2.3) is in play. Sorry Gary!

In my oh so humble opinion, isoHunt is probably screwed. The legislator has failed to differentiate between a torrent site that just helps you find things via a search engine, and a site that actually tracks them via torrent. It will most likely take a court to sort it all out.

The legislator has provided a series of six factors that a court can use to determine if someone is facilitating copyright infringement under 27(2.3). I won’t go through them all because that will bore you to tears, but here’s one – whether the service has significant uses other than to enable acts of copyright infringement. This, no doubt, would help a court differentiate isoHunt from Google.

In the meantime, while we wait for the Bill to become Law and the courts to sort it all out, I need to download the latest Boardwalk Empire. Anyone know where I can find it?