Kill Bill C-11 Vol. 5: Enable this! (or, Goodbye and good luck isoHunt)

Howdy kidz! It’s Monday Morning, which is the absolute bestest time to read legislation! And read legislation we shall. Don’t go away, this is important! Maybe. Last week, Bill C-11, The Copyright Modernization Act (you should all know that by now), made it out of committee and will come back to the House soon for third reading, passage, then rubber-stamping by the Senate before it gets official Royal Assent. And we now have the details of the amendments that the Committee passed. Note that all the amendments passed were Conservative ones, and all the Liberal and NDP amendments failed. Try to act shocked. Anyway, I thought I would take a look at one of the amendments that directly affects the internet and our favourite method to locate torrent files, isoHunt. Let’s break it down after the jump.

Clause 18 of C-11 creates a couple of new types of copyright infringement. First, it creates a “secondary infringement” for “lessons” which is all about education or some such crap I don’t care about. The next infringement it creates however I do care about, for it is about facilitating, or “enabling”, copyright infringement on the internet. And what at first glance looked like a tweak made by the Committee is actually a pretty significant change. Here’s how the article used to read (note the “2.3” at the beginning is because Bill C-11 creates a new section 27(2.3) of the Copyright Act):

(2.3) 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.

So what we’ve got here is a new secondary liability over the internet. Secondary liability just means that it is not the person who actually infringed the copyright who is liable, it is some “secondary” person who helped make that first person’s infringement possible. So in this case, someone who provides “a service” over the internet (e.g. a torrent file search engine) which another person then uses to infringe copyright over the internet is just as liable as the person who actually did the downloading. When this secondary infringement was released oh so many versions of this Bill ago, it was widely seen to be targeting the likes of isoHunt, so important to you (us) Canadian Torrenters (see this piece for example).

Anyway, with this whole new type of copyright infringement, obviously the government wants to make sure they get it right to satisfy their big media overlords. Here’s the way the clause looks now, after the Committee tweaked it:

(2.3) It is an infringement of copyright for a person, by means of the Internet or another digital network, to provide a service primarily for the purpose of enabling 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.

Can you spot the change? Go ahead and read them both again, I’ll wait. (…) Figured it out yet? No? OK, I’ll tell you.

This phrase:

a service that the person knows or should have known is designed primarily to enable acts of copyright infringement

has been replaced by this:

a service primarily for the purpose of enabling acts of copyright infringement

The lawyers out there will immediately recognize the significance of removing the phrase “knows or should have known.” Even the non-lawyers will recognize what this does is remove the knowledge element of the infringement. This means that it is now completely irrelevant what the secondary infringer had in his head. If the service is found to be an enabler by some objective (presumably court-imposed) standard, and there is subsequent copyright infringement, there is secondary infringement as well. Point finale.

Why is this important to isoHunt (for example)? Well Gary Fung, founder of isoHunt, always says (at least publicly) that he doesn’t really know what his users are doing, his site points to torrent files that don’t lead to copyright infringement, etc. Now, that line is completely irrelevant. It doesn’t matter what Gary Fung says he thinks – he’s screwed no matter what, because for sure some court will hold that isoHunt is “a service primarily for the purpose of enabling acts of infringement”.

The new version of this section will make it much easier for a court to find this secondary infringement with the removal of the knowledge requirement. At least the word “primarily” is still there, which would have made the provision that much worse.

But, wait, there’s more! What’s really interesting here is that C-11 follows up this definition of liability with a list of six factors that a court can consider when deciding if there is in fact secondary infringement. I am going to put two of them here:

(a) whether the person expressly or implicitly marketed or promoted the service as one that could be used to enable acts of copyright infringement;

(b) whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement;

What’s interesting is that these two factors seem to be designed to get at the heart of the knowledge requirement from the old version. Yet the government did not change the factors at all with the new amendment. Simple oversight or government stupidity? I report, you decide.

Your takeaway for the day – isoHunt is fucked.