isoHunt Settles as Five-Year Copyright Act Review Approaches

September 21, 2016

Alan Willaert  -  AFM Vice President from Canada

In the upcoming five-year review of the Canadian Copyright Act, certainly one of the hot topics under scrutiny will be Internet service provider (ISP) liability. At the start of 2015, a new Canadian law came into effect called the “Notice and Notice” regime. It requires that all ISPs to forward copyright infringement notices to customers suspected of downloading unauthorized content like movies, TV shows, and music.

The purpose of the notice system is to discourage piracy. Some jurisdictions, including the US, as per its Digital Millennium Copyright Act (DMCA), employ the “Notice and Takedown” regime, whereby the infringing party is notified of the violation, but if infringement continues, the site is taken down.

isoHunt.com

An ongoing major case has finally been settled. Vancouver’s Gary Fung founded isoHunt.com in 2003, and was forced to close it down in October 2013, due to litigation by the Motion Picture Association of America (MPAA), which resulted in a $110 million settlement for damages. By 2008, isoHunt had become the third most popular BitTorrent site, with more than 40 million unique searches per month.

Concurrent to the MPAA lawsuits, Music Canada (formerly Canadian Recording Industry Association, CRIA) was litigating on behalf of 27 Canadian and international labels, also affected by the infringement. On July 25, Fung and isoHunt, in a consent order filed with the British Columbia Supreme Court, admitted to the infringement and agreed to pay $55 million in damages, $10 million in aggravated damages, and $1 million in legal costs to settle the lawsuit filed by the music industry in 2010.

While the site takedown and subsequent settlement is good news for the industry, there is no way to determine the extent of the damage to individual artists. Billions of tracks were downloaded illegally to users’ hard drives. But how many times did those people again share the tracks on a peer-to-peer basis? Even if they only shared with one other person, that effectively doubles the infringement. The amount of lost revenue to artists is staggering.

Even while admitting these losses, there are special interest groups who claim to be fighting for an “open Internet.” Taking the position that new technology voids any existing laws or rights, they will be lobbying in the upcoming copyright review for the government to eliminate laws that prohibit access to content currently protected by the act. In other words, they want to allow the Internet to continue to be the Wild West.

Even if you take the position that music on the Internet should be free, you must understand that Canada’s Copyright Act is not exactly the strictest in the world. In fact, it has often come under the criticism of other countries for not providing sufficient protection to foreign artists, let alone Canadian. When our musicians’ content receives airplay or is sold in other countries, we hope that those jurisdictions provide our artists with the royalties and protection against infringement they deserve.

For us to not at least offer quid pro quo is unacceptable. That’s one of the reasons the CFM will be front and centre, along with other creative groups, partners, and coalitions, lobbying for changes that enhance protection, rights, and revenue for our members. It’s the right thing to do.

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