NO. S103350VANCOUVER REGISTRY
IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN:ARISTA RECORDS LLC, CAPITOL RECORDS, LLC, LA COMPAGNIE LARIVEE, CABOT,CHAMPAGNE, DARE TO CARE RECORDS INC., LES DISQUES AUDIOGRAMME INC., EMIMUSIC CANADA, EMI RECORDS LIMITED, INTERSCOPE RECORDS, JUSTIN TIMERECORDS INC., LAFACE RECORDS LLC, MERCURY RECORDS LIMITED, MUTE RECORDSLIMITED, POLYDOR LIMITED, SONY MUSIC ENTERTAINMENT, SONY MUSICENTERTAINMENT CANADA INC., SONY MUSIC ENTERTAINMENT UK LIMITED,TANDEM.MU INC., UMG RECORDINGS, INC., UNIVERSAL MUSIC CANADA INC.,UNIVERSAL-ISLAND RECORDS LIMITED, VIRGIN RECORDS AMERICA, INC, VIRGINRECORDS LIMITED, WARNER MUSIC CANADA CO., WARNER MUSIC UK LIMITED, WEAINTERNATIONAL INC., ZOMBA RECORDING LLCPLAINTIFFSAND:ISOHUNT WEB TECHNOLOGIES, INC. and GARY FUNG
DEFENDANTS
RESPONSE TO CIVIL CLAIM
Filed by: ISOHUNT WEB TECHNOLOGIES, INC. and GARY FUNG (the “Defendants”)
Part 1: RESPONSE TO NOTICE OF CIVIL CLAIM FACTS
Division 1—Defendants’ Response to Facts
1. The facts alleged in paragraphs 4 to 29 inclusive and 32, of Part 1 of the Notice of Civil Claim are admitted.2. The facts alleged in paragraphs 1, 2, and 33 to 65 inclusive of Part 1 of the Noticeof Civil Claim are denied.3. The facts alleged in paragraphs 3, 30, and 31 of Part 1 of the Notice of CivilClaim are outside the knowledge of the Defendants.
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Division 2—Defendants’ Version of Facts
The isoHunt Website
4.
The Defendants specifically admit that the Defendant isoHunt Web TechnologiesInc. (“isoHunt”) is a company incorporated pursuant to the laws of British Columbia butstate that its registered and records office is located at 7316 Baffin Court, Richmond,British Columbia V7C 5L6.5.
The Defendant Gary Fung (“Fung”) is a businessperson and president of theDefendant isoHunt.6.
The Defendant isoHunt operates a website on the World Wide Web (“Web”)calledwww.isohunt.com(the “isoHunt Website”). The isoHunt Website offers oneprimary service:a.
a Web 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; andc.
facility for visitors to upload identification data known as dot-torrent files andmore particularly described in paragraphs 12 to 14 of this Response to CivilClaim (“Response”).7.
The isoHunt Search Engine is an Web-based information location tool that assistsan individual to locate content of interest on the Web by locating metadata for thatcontent. This content is in a file called in this Response a “BT Content File”. A BTContent File is distributed by individuals over the Web pursuant to a technology orprotocol called “BitTorrent” (sometimes abbreviated in this Response as “BT”).8.
For the purposes of clarity in this Response and as will be more particularlydescribed in this Response, the Defendants say that:
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a.
neither the isoHunt Website nor the isoHunt Search Engine ever hosts anyBT Content File the content of which is subject to a claim of copyrightwithout the express authorization of the copyright holder. No content(such as a sound recording), not even a fragment of content, is stored on orpasses through the isoHunt Website or the isoHunt Search Engine with thenarrow exceptions outlined in paragraphs 31 and 44 of this Response;b.
neither the isoHunt Website nor the isoHunt Search Engine has ever hadtracker functionality and thus, aside from the minor services noted insubparagraphs 6(a) and (b) of this Response, they purely provide anindexing service;c.
neither the isoHunt Website nor the isoHunt Search Engine has everprovided or offered BT Client Software for sharing sound recordings orother content files – individual users obtain this software (described inparagraphs 24 to 31 of this Response) elsewhere, usually generally freelyavailable on the Web.9.
Again for the purposes of clarity and as will be more particularly described in thisResponse, the Defendants deny and put the Plaintiffs to the strict proof of the allegationsin the Notice of Civil Claim, including but not limited to:a.
any of the musical works listed in the Notice of Civil Claim (collectivelyreferred to in this Response as the “Plaintiffs’ Sound Recordings”) haveever been duplicated or distributed by the Defendants on the isoHuntWebsite or any of the other websites operated by the Defendants;b.
the Plaintiffs have suffered any damages or that the sales of the Plaintiffs’Sound Recordings have decreased over time because of anything done bythe Defendants in operating the isoHunt Website, the isoHunt SearchEngine or any of the Defendants Other Websites (described in paragraphs45 to 49of this Response).
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