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Petition to the Court

Petition to the Court - -—r SUPREME COURT SE ERITJSH...

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Unformatted text preview: -—r SUPREME COURT SE ERITJSH CGLUMBIA VANQQLJVER RESISTRY SEE El E; 2m romuRumloon g“ 9 Egg No. .............................. Vancouver Registry In the Supreme Court of British Columbia 1 Between ISOHUNT WEB TECHNOLOGIES, INC, Petitioner And EMI GROUP CANADA INC, doing business as, EMI MUSIC CANADA and said EMI MUSIC CANADA, UNIVERSAL MUSIC CANADA INC/MUSIQUE UNIVERSAL CANADA INC, SONY BMG MUSIC (CANADA) INC, WARNER MUSIC CANADA CO. and CANADIAN RECORDING INDUSTRY ASSOCIATION, Respondents PETITION TO THE COURT THIS IS THE PETITION OF: ISOHUNT WEB TECHNOLOGIES INC. 6371 Granville Crescent Richmond, B.C. V7C 2V5 ON NOTICE TO: EMI GROUP CANADA INC. dba EMI MUSIC CANADA and said EMI MUSIC CANADA c/o Mary Ruhi and Robert Swift 2800 Park Place 666 Burrard Street Vancouver, BC. V6C 227 UNIVERSAL MUSIC CANADA INCfMUSIQUE UNIVERSAL CANADA INC. c/o Blakes Vancouver, Services Inc. Suite 2600 Three Bentall Centre PO. Box 49314 595 Burrard Street Vancouver, BC. V7X 1L3 SONY BMG MUSIC (CANADA) INC/SONY BMG MUSIQUE (CANADA) INC. c/o Ronald Lou-Poy Crease Harman & Company Suite 800 - 1070 Douglas Street Victoria, BC. V8W 288 WARNER MUSIC CANADA C0. c/o Naomi Youngson Suite 1300 — 777 Dunsmuir Street PO. Box 10424, Pacific Centre Vancouver, BC. V7Y 1K2 CANADIAN RECORDING INDUSTRY ASSOCIATION 70 Mowat Avenue Toronto, Ontario M6K 3E3 . Let all persons whose interests may be affected by the order sought TAKE NOTICE that the petitioner applies to court for the relief set out in this petition. APPEARANCE REQUIRED IF YOU WISH TO BE NOTIFIED of any further proceedings, YOU MUST GIVE NOTICE of your intention by filing a form entitled “Appearance” in the above registry of this Court within the Time for Appearance and YOU MUST ALSO DELIVER a copy of the ‘prpearance” to the petitioner’s address for delivery, which is set out in this petition. YOU OR YOUR SOLICITOR may file the “Appearance”. You may obtain a form of “Appearance” at the registry. IF YOU FAIL to file the “Appearance” within the proper Time for Appearance, the petitioner may continue this application without further notice. TIME FOR APPEARANCE Where this Petition is served on a person in British Columbia, the time for appearance by that person is 7 days from the service (not including the day of service). Where this petition is served on a person outside British Columbia, the time for appearance by that person after service, is 21 days in the case of a person residing anywhere within Canada, 28 days in the case of a person residing in the United States of America, and 42 days in the case of a person residing elsewhere. [or,'where the time for appearance has been set by order of the court, within that time] TIME FOR RESPONSE IF YOU WISH TO RESPOND to the application, you must, on or before the 8th day after you have entered an appearance, (a) deliver to the petitioner (i) 2 copies of a response in Form 124, and (ii) 2 copies of each affidavit on which you intend to rely at the hearing, and , (b) deliver to every other party of record ('1) one copy of a response in Form 124, and (ii) one copy of each affidavit on which you intend to rely at the hearing. (I) The address of the registry is: , 800 Smithe Street Vancouver, BC V62 2131 The ADDRESS FOR DELIVERY is: Grant Kovacs Norell Barristers & Solicitors 400 w- 900 Howe Street Vancouver, BC V62 2M4 Fax number for delivery (if any):_ 604-609—6688 The name and office address of the petitioner’s solicitor is: Arthur M. Grant Grant Kovacs Norell Barristers & Solicitors 400 —— 900 Howe Street Vancouver, BC V62 2M4 Fax number: 604-609—6688 The petitioner applies for an order that: i. isoHunt’s operation of the website (www.isohunt.com) as described in the affidavit of Gary Fung sworn on September 5, 2008 does not violate the provisions of the Copyright Act, RSC 1985, c. C-42 insofar as CRiA Fiies (as that term defined by para. 40 of the Facts section of this Petition) are concerned; ii. isoHunt’s operation of the isoHunt Search Engine as described in the affidavit of Gary Fung sworn on September 5, 2008 does not violate the provisions of the Copyright Act, RSC 1985, c. (3-42 insofar as CRIA Fiies (as that term defined by para. 40 of the Facts section of this Petition) are concerned; iii. isoHunt-’8 operation of the website wwwtorrentboxcom as described in the affidavit of Gary Fung sworn on September 5, 2008 does not violate the provisions of the Copyright Act, RSC 1985, c. C-42 insofar as CRIA Files (as that term defined by para. 40 of the Facts section of this Petition) are concerned ; iv. isoHunt’s operation of the website wwwpodtropoliscom as described in the - affidavit of Gary Fung sworn on September 5, 2008 does not violate the provisions of the Copyright Act, RSC 1985, c. C-42 insofar as CRIA Files (as that term defined by para. 40 of the Facts section of this Petition) are concerned ; v. Costs The petitioner will rely on: Vi. Copyright Act, RSC 1985, c. 042; ’vii. Rules of Court, Rules 10 and 57; viii. The inherent jurisdiction of this Honourable Court. At the hearing of this petition will be read the affidavit(s) of Gary Fung, sworn on September 5, 2008, a copy of which are served herewith and such further material as counsei may later advise. The facts upon which this petition is based are as foilows: The Parties ,1. The Petitioner, isohunt Web Technologies Inc. (“isoHunt”) is a company incorporated under the laws of British Columbia with a registered office located at 6371 Granville Crescent, Richmond, British Columbia. 2. The Respondent, Canadian Recording Industry Association, is, on information and belief, an association of music companies operating in Canada whOSe members own or hold Canadian copyright rights in the vast majority of all sound recordings manufactured, distributed and sold in Canada. The Respondent EMI Music Canada, is a division of EMI Group Canada Inc. (“EMI”) which is a corporation incorporated under the laws of Ontario, with a registered office at 3109 American Drive, Mississauga, Ontario, and being extra- provincially registered in British Columbia with an attorney’s address being c/o Mary Ruhl and Robert Swift, 2800 Park Place, 666 Burrard Street, Vancouver, BC. V6C 227. The Respondent Universal Music Canada Inc. (“Universal”) is a corporation incorporated under the laws of Ontario, with a principal place of business at 2450 Victoria Park Avenue, Suite 1, Toronto, Ontario MIJ 5H3 and being extra— provincially registered with an attorney’s address being c/o Blakes Vancouver, Services Inc. at Suite 2600, Three Bentail Centre, PO. Box 49314, 595 Burrard Street,.Vancouver, B.C. V7X 1L3. The Respondent Sony BMG Music (Canada) Inc. (“Sony”) is a corporation incorporated under the laws of Ontario, with a principal place of business at £90 Liberty Street, Suite 100, Toronto, Ontario M6K 3L5 and being extra-provincially registered with an attorney’s address being c/o Ronald Lou—Poy, Crease Harman & Company at Suite 800 - 1070 Douglas Street, Victoria, BC. V8W 288. The Respondent Warner Music Canada Co. (“Warner”) is a corporation incorporated under the laws of Ontario, with a principal place of business at 900, 1959 Upper Water Street, Nova Scotia B31 3N2 and being extra—provincially registered with an attorney’s address being c/o Naomi Youngson at Suite 1300 M 777 Dunsmuir Street, PO. Box 10424, Pacific Centre, Vancouver, BC. V7Y 1K2. The Respondent Canadian Recording Industry Association is a non-profit society having its principal place of business at 70 Mowat Avenue, Toronto, Ontario M6K 3E3. The Respondents, EMT, Universal, Sony and Warner are all members of the Respondent association, Canadian Recording Industry Association. All of the Respondents are collectively referred to by the acronym “CRIA” in this Petition. Isohunt Web Technologies Inc. 9. Isohunt operates website on the World Wide Web (“‘Web” or “Internet”) called wwwisohuntcorn (the “isoHunt Website”). The isoHunt Website offers one primary service: a. a search engine or information location tool (the “isoHunt Search Engine”) for visitors to the isoHunt Website to use; and two minor services b. a forum for visitors to the isoHunt Website to interact and to hold discussions; and c. facility for visitors to upload dot—torrent files. 10. . The isoHunt Search Engine is an Internet—based tool that allows a visitor/user to locate information presented in a particular protocol, namely BitTorrent, that is available throughout the Internet. 11. isoHunt also operates two other websites on the Web called wwwtorrentboxcom and wwwpodtropoliscom (the “Other Websites”). Definitions 12. For the purposes of this Petition, the following definitions of terms will be used: “Internet” and “Web “ a. The Internet or “Web” is based on a set of protocols (computer rules/languages) that were developed to allow computers around the world, to communicate with each other. After the development of those fundamental protocols that created and allowed a certain group of computers (and their users) that “spoke” that protocol, to interact, many individuals and organizations associated with those computers, began to make their content files available for others in that group to obtain (by “downloading” or c0pying onto their own computers). And to enhance this process of file connectivity, another set of protocols (the “World Wide Web” protocols) were developed that operate “on top of” the fundamental protocols. The Internet or Web (the terms are colloquially interchangeable) comprises of millions of interconnected computers with billions of files made available to each other through a variety of languages and protocols. “IP address ” and " URL ” b. Computers that can communicate using the Internet protocols have,‘at any given time, a unique “location” called “lnternet Protocol address” or “lP address”. Although an IP address does not correspond to a physical location in the way that a street address does, it can be thought of, by analogy, as a mobile phone number: it is a location that is meaningfiil to the telecommunications system that the mobile phone belongs to. A “URL” is also an “address” on the Internet or Web, but it exists at a higher level than an IP address and an URL will resolve to a unique I? address or location on the Internet or Web. To continue the rough analogy, if an IP address can be thought of as a mobile phone number, an URL may be the speed-dial button titled “Spouse” on another phone and that button “corresponds” to (or “resolves” to) that mobile phone number, so when that button is activated, the specific mobile phone number is called. ”Search Engine ” In the very large ecosystem that is commonly today called the “Internet” or the “Web” (“comprising” many millions of computers with many billions of files, made available through various languages and protocols), location toois have been developed and are known as search engines for users. Among the most popular Internet search engines are Google, Yahoo and Microsoft Live Search. ”Peer-ro—Peer ” or "P2P ” The traditional network model for the sharing or transfer of a file has a central computer (or “server”) that has the “original” or “master” of a file and sends copies of it to many (hundreds, thousands, and sometimes millions of) recipients. The essence of the traditional model is the centralization of resources (including computing processing power and storage means). “Peer—to—Peer” or “PZP” technology turns the traditional model around through decentralization. P2P technology uses the many (hundreds, thousands, and sometimes millions of) computers that in the traditional centralized model were only recipients to participate in the distribution of the same file, each computer receiving and sending fragments of the file. The acronym “P2P” stands for “peer to peer” _. these many computers can be harnessed as “peers” without a central “server”, and the distribution of files is accomplished by the peers. “BitTorrent ” One particular current P2P protocol is called “BitTorrent”. BitTorrent protocol is a data transfer protocol that can be characterized as very decentralized. BT Content F fie A BT Content File is a file formatted in accordance with BitTorrent protocol. The file can be a file of anything, from a text file to a Videographic file, from a photographic file to an audio file. Peers Peers are the plurality of computers that distribute the BT Content File, with each computer typically receiving and sending fragments of the BT Content File to one or more Leechers. Peers, therefore, are all Seeders and Leechers engaged in a Swarm. BitTarrenr client sofMare h. in. BitTorrent client software is software that is installed on a computer that, once activated by the operator of that computer and once that computer is connected to the Internet, allows that computer to become a Peer, Leecher or Seeder for the purposes of sharing a BitTorrent Content File without any operator action beyond the activation previously mentioned. Seeder A Seeder is a computer that has a complete copy of the BT Content File and is sending it (in fragments) to Peers in the swarm. Depending on the context, the term ”Seeder” also refers to the individual who operates such a computer. There is the original Seeder (the person who first creates the BT Content File and uploads it, according to BitTorrent Technology, for it _ to be searched and shared by others). But after a while, if the BT Content File is popular, each Leecher will have become a Seeder. Leecher A Leecher is a computer that does not have a complete copy of the BT Content File but the operator of that computer desires to obtain it. Depending on the context, the term ”Leecher” also refers to the individual who operates his or her computer and the BitTorrent client software to start the process of downloading the desired BT Content File and thereby becomes a Peer (receiving and sending fragments of the BT Content File) and, eventually, possibly a Seeder. If and when the BT Content File is completely copied onto the Leecher’s computer, the Leecher becomes a Seeder. Swarm A Swarm is a particular set of Peers operating to distribute a particular BT Content File by BitTorrent technology from one or more Peers to one or more Leechers. A Swarm exists only as a collective entity in respect of a particular BT Content File. Tracker A Tracker is software on a computer that introduces Peers to each other within a Swarm so they can upload or download fragments of the BT Content File to each other. The Tracker keeps track of the Seeders (the computers with the complete copy of the BT Content File) and all the Peers who are in the process of a Swarm, i.e. downloading and uploading fragments of the complete BT Content File. dot-torrenrfile A dot-torrent tile is a small file that has metadata about the BT Content File (or several BT Content Files). In this Petition, we will refer to a singular BT Content File for sake of simplicity. The dot-torrent file is created by an individual (the Seeder) who has a complete BT Content File that the Seeder wants to share by the BitTorrent technology and which may be desired by others, i.e. the Seeder wishes to “seed” a distribution of a BT Content File. The Seeder creates metadata with two pieces of information: first, the name of the BT Content File and secondly, the URLs of one or more Trackers. The name of the BT Content File is something that the (individual) Seeder creates for his or her dot-torrent file. The URLs are Internet location information that resolve, when used in a standard Internet Browser, to an IP address(es) or location(s) of the Tracker(s). The names of dot-torrent files always end with the suffix - “torrent” just as the names of Microsoft Word files always end with the suffix “.doc”. ' How the isoHunt Search Engine is used by a user l3. 14. 15. l6. 17. If a user wants to obtain a copy of a particular BT Content File, the user usually initiates the process by finding a BitTorrent-specific search engine. The process outlined below describe the process that is followed when the isoHunt Search Engine is used by such a user. The user will go on his computer to the isoHunt Website (“www.isohunt.corn“). The user will type into the isoHunt Search Engine the name of the text or song or video or other subject matter. For the purposes of this Petition, and for the purposes of convenience of pleading, it will be assumed that it is the song “Mary had a little lamb”. The isoHunt Search Engine Engine looks in its database and “returns” “pointers” (or links) to any dot-torrent files in the database that contain the phrase “Mary had a little lamb”. If one or more such links are returned, the user may choose to download the associated dot-torrent file by clicking on a link that “points to” (or downloads) the dot~torrent file. For example, if the user clicks on a link that says “Mary had a little lamb”, the isoHunt Search Engine will send the dot—torrent file with that name to the user's computer. At this point, the participation of the isoHunt Search Engine and of the isoHunt Website is at an end. What happens thereafter depends entirely 0n the user and on the BitTorrent client software on the user’s computer. The user does not have to activate BitTorrent client software on his or her computer in order to download the dot—torrent file. If the user’s BitTorrent client software (based on settings set by the user) is monitoring the Internet stream to and from his or her computer, it may automatically “load” the dot—torrent file and obtain the metadata contained in the dot-torrent file. 18. 19. 20. 21. 22.. 23. 24. 10 That metadata has information that is specific to that particular BitTorrent distribution of “Mary had a little lamb”. It has information about the hash of the BT Content File that the particular dot—torrent file is associated with. The dot— torrent file also contains a list of URl’s on the Internet of one or more Trackers. The user’s BitTorrent client software uses these URL’s to make contact with the listed Trackers. If the BitTorrent client software is activated by the user to act on the dot—torrent file, the BitTorrent client software sends an inquiry to a Tracker that is on the list of Trackers in the dot-torrent file. The inquiry includes the hash that is unique to the BT Content File desired and a request to be introduced to a Swarm that is then currently exchanging fragments of that BT Content File. That Tracker may or may not be handling such a Swarm. If not, the user’s BitTorrent client software sends an inquiry to another Tracker on the list and continues dOWn the list of Trackers until one is successfully contacted. The isoHunt Website does not host any Trackers on it. Once the BitTorrent client software makes contact with a Tracker handling a Swarm identified by the hash ofthe BT Content File, the Tracker maintains a list of IP addresses of Peers participating in that Swarm. in response to the initial inquiry from the BitTorrent client software to the Tracker with respect to a specific hash, the Tracker responds by sending to the BitTorrent client software a list of IP addresses of other Peers in the Swarm who are known from their own previous inquiries. In addition, the Tracker adds that user’s IP address to the list, to be sent in response to subsequent inquiries from other Peers. During the download process, the user’s BitTorrent client software periodically sends inquiries to Trackers and updates the user’s list of lP addresses of other Peers involved in the file—exchange. During acquisition of a large BitTorrent Content file, many Peers and Trackers drop out of the Swarm and new ones join. After the user has downloaded the dot-torrent file named “Mary had a little lamb”, and his BitTorrent client loads the dot-torrent file, contacts a Tracker and obtains a list of IP addresses of Peers in a Swarm, to get the download of the actual BT Content File for “Mary had a little lamb”, the user’s BitTorrent client software must join the Swarm of Peers who are alrea...
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