NO.

S103350 VANCOUVER 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., EMI MUSIC CANADA, EMI RECORDS LIMITED, INTERSCOPE RECORDS, JUSTIN TIME RECORDS INC., LAFACE RECORDS LLC, MERCURY RECORDS LIMITED, MUTE RECORDS LIMITED, POLYDOR LIMITED, SONY MUSIC ENTERTAINMENT, SONY MUSIC ENTERTAINMENT 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, VIRGIN RECORDS LIMITED, WARNER MUSIC CANADA CO., WARNER MUSIC UK LIMITED, WEA INTERNATIONAL INC., ZOMBA RECORDING LLC PLAINTIFFS AND: 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 Notice

of Civil Claim are denied. 3. The facts alleged in paragraphs 3, 30, and 31 of Part 1 of the Notice of Civil

Claim 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 Technologies

Inc. (“isoHunt”) is a company incorporated pursuant to the laws of British Columbia but state 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 the

Defendant isoHunt. 6. The Defendant isoHunt operates a website on the World Wide Web (“Web”)

called www.isohunt.com (the “isoHunt Website”). The isoHunt Website offers one primary 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. c. a forum for visitors to the isoHunt Website to interact and to hold discussions; and facility for visitors to upload identification data known as dot-torrent files and more particularly described in paragraphs 12 to 14 of this Response to Civil Claim (“Response”). 7. The isoHunt Search Engine is an Web-based information location tool that assists

an individual to locate content of interest on the Web by locating metadata for that content. This content is in a file called in this Response a “BT Content File”. A BT Content File is distributed by individuals over the Web pursuant to a technology or protocol called “BitTorrent” (sometimes abbreviated in this Response as “BT”). 8. For the purposes of clarity in this Response and as will be more particularly

described in this Response, the Defendants say that:

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a. neither the isoHunt Website nor the isoHunt Search Engine ever hosts any BT Content File the content of which is subject to a claim of copyright without the express authorization of the copyright holder. No content (such as a sound recording), not even a fragment of content, is stored on or passes through the isoHunt Website or the isoHunt Search Engine with the narrow exceptions outlined in paragraphs 31 and 44 of this Response; b. neither the isoHunt Website nor the isoHunt Search Engine has ever had tracker functionality and thus, aside from the minor services noted in subparagraphs 6(a) and (b) of this Response, they purely provide an indexing service; c. neither the isoHunt Website nor the isoHunt Search Engine has ever provided or offered BT Client Software for sharing sound recordings or other content files – individual users obtain this software (described in paragraphs 24 to 31 of this Response) elsewhere, usually generally freely available on the Web. 9. Again for the purposes of clarity and as will be more particularly described in this

Response, the Defendants deny and put the Plaintiffs to the strict proof of the allegations in the Notice of Civil Claim, including but not limited to: a. any of the musical works listed in the Notice of Civil Claim (collectively referred to in this Response as the “Plaintiffs’ Sound Recordings”) have ever been duplicated or distributed by the Defendants on the isoHunt Website 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 by the Defendants in operating the isoHunt Website, the isoHunt Search Engine or any of the Defendants Other Websites (described in paragraphs 45 to 49of this Response).

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c. The Defendants have done anything to authorize any infringement of the copyright in any of the Plaintiffs’ Sound Recordings. BitTorrent (BT) technology 10. BitTorrent is a particular implementation and protocol of a class of file-sharing or

file-distributing technologies, generally called “peer to peer” (“P2P”), where the work of distributing a file is distributed among two or more “peer” computers (each computer operated by an individual user) instead of being done by a single, centralized computer. BT Content File 11. A BT Content File is any file that has content of interest to individuals (for

examples, photographic, videographic, audiographic or literary works) and that is distributed by BitTorrent protocol. A user of the BitTorrent protocol may seek to obtain or distribute or exchange a copy of a given BT Content File. BT Content Files are not, as a general rule, created by the Defendant isoHunt. Dot-torrent file (metadata for a BT Content File) and (initial) Seeder 12. Individual users of the BitTorrent protocol create and/or use “dot-torrent” files. A

dot-torrent file is created by an individual who has a complete copy of a particular BT Content File on his or her computer, and wants to share and distribute that BT Content File by the BitTorrent protocol. This individual is known as the “initial Seeder”. The initial Seeder creates a dot-torrent file for a BT Content File, with the following information (being the metadata of that BT Content File): a. the name of the BT Content File; b. the hash (or a practically unique identifier) of the BT Content File; c. a list of URLs (Uniform Resource Locators or “locations on the Web”) of one or more Trackers.

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In the preceding explanation about a dot-torrent file, reference is made to a single BT Content File for economy of expression. A dot-torrent file may also be created to contain metadata about two or more BT Content Files.

13.

The metadata for that BT Content File is selected or created by the initial Seeder.

As a notional example, an individual may have a personal video of his or her car, a Toyota Matrix®, that the individual wishes to distribute by BT protocol. That individual, the initial Seeder, may give that video of a Matrix car (i.e. the BT Content File) the name of “matrix”. The initial Seeder will also assign a hash (or practically unique identifier) for that BT Content File. The initial Seeder will also set a list of URLs for Trackers to be used. 14. For creating the aforesaid metadata (dot-torrent file), the initial Seeder will

typically use BT Client Software. BT Client Software is unrelated to the Defendants and is generally freely available on the Internet. The other functions and roles of BT Client Software are introduced beginning at paragraph 24 of this Response. Tracker, Peers, Leechers, Swarm 15. A Tracker is a software program on a computer that introduces “Peers” to each

other thereby creating a group known as a “Swarm” in respect of a particular BT Content File of interest. A Peer is an individual with a computer that is connected to the Web, that has an “IP address” and that has BT Client Software installed and activated (as described in paragraphs 24 to 31 of this Response). A Swarm is comprised of: (a) Seeders (being the initial Seeder who has the “first” copy of a particular the BT Content File plus those Peers who subsequently download a complete copy of that BT Content File); and (b) “Leechers” (those Peers who have joined the Swarm and who desire but still do not have a complete copy of that BT Content File). In this Response, for economy of Leecher, and that user’s expression, the individual user who is a Peer, Seeder or the Internet, are treated as the same entity.

computer with its BT Client Software installed and activated by the user and connected to

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16.

Through the Swarm, Peers can upload or download fragments of a particular BT

Content File to or from each other so that Peers can, if they wish, eventually obtain a complete copy of the BT Content File. The Tracker for a given Swarm in progress keeps track of the Seeders and Leechers. 17. A Tracker is not necessary for the BitTorrent protocol to be implemented.

Implementations that do not require a centralized computer to perform the introductions of Peers to form a Swarm (according to the Tracker-based process described in paragraph 15 of this Response) are “trackerless”, and are increasingly being used. Trackers and “trackerless” features in numerous BT Client Software implementations are generally freely available on the Internet. There are over 180,000 Trackers on the Web run by numerous independent operators. 18. Trackers and Peers all exist in temporary collectives and all functions are

dispersed. There is no central position for any participant. There is no power of control for anyone to exercise except for the individual user. How the isoHunt Search Engine is used by a user 19. An individual finds a BT Content File by using a general Web search engine or a

BitTorrent-specific search engine (i.e. an information location tool that searches only dottorrent files from the entirety of the Web and indexes them) such as the isoHunt Search Engine. Outlined in the ensuing paragraphs of this Response is the process followed by an individual using the isoHunt Search Engine. 20. The individual user goes on his or her computer to the isoHunt Website. As a

user of the isoHunt Search engine, the individual user enters the words that the user thinks relate to or describe the content of interest. 21. The isoHunt Search Engine then searches in its database of dot-torrent files and

any links to such files (this database is explained in paragraph 30 of this Response) and “returns” to the individual user, the links to all, if any, dot-torrent files which have a BT Content File name that contain some or all of the entered search words. To continue the notional example (of paragraph 13 of this Response), the individual user enters the word

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“matrix” into the isoHunt Search Engine, which returns all dot-torrent files which have BT Content File Names (or any other metadata created by the initial Seeder for a particular dot-torent file) that have the word “matrix”. 22. If one or more such links are returned, the individual user may select to download Such a selectively downloaded dot-torrent file is called a

the associated dot-torrent file by clicking on the link that will download the dot-torrent file to the user’s computer. “selected dot-torrent file” in paragraph 26 of this Response. The process after the individual user’s selection and download of the identification data (dot-torrent file) to the user’s computer, operates independently of the Defendants, the isoHunt Website and the Other Websites. 23. At this point, the participation of the isoHunt Search Engine and of the isoHunt

Website in the individual user’s activities is at an end and the individual user’s subsequent activities, during which the user may become a Leecher, explained in paragraphs 24-31 of this Response, are all done without the participation of the isoHunt Search Engine and isoHunt Website. 24. The next steps depend on whether the individual user has BT Client Software

installed on the individual user’s computer and on the user’s configuration of the settings of that BT Client Software. In addition to assisting an initial Seeder to create a dottorrent file for the individual user’s BT Content File as described in paragraph 12 of this Response, BT Client Software also assists the user to manage the sharing of a BT Content File with other Peers. 25. The BT Client Software, once it is activated on that computer and once that

computer is connected to the Internet, allows that computer to become a Peer for the purposes of sharing a BT Content File through a Swarm (as described in paragraphs 15 and 16 of this Response) without any further user action. 26. If the BT Client Software is neither activated nor been previously set by the user

to automatically load the selected dot-torrent file, nothing happens until the individual user chooses to do something with the selected dot-torrent file. What is described next is

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what happens if the individual user has activated the BT Client Software installed on the user’s computer and configured it to automatically load the selected dot-torrent file and obtain the metadata contained in that selected dot-torrent file. 27. The metadata (as described in paragraph 12 of this Response) obtained by virtue

of the activated and configured BT Client Software described in paragraph 26 of this Response has a list of URLs for Trackers that are set by the initial Seeder. The user’s BT Client Software uses the listed URLs to attempt contact with the listed Trackers. 28. After contact with a Tracker, the BT Client Software sends an inquiry that

includes: (a) the hash that is unique to the associated BT Content File and (b) a request that the individual user (“Leecher”) be introduced to a Swarm that is then currently exchanging fragments of that BT Content File. At the time of inquiry, that Tracker may or may not be handling such a Swarm identified by the hash. If not, the BT Client Software sends an inquiry to another Tracker on the list of Trackers and continues down the list until one is successfully contacted. 29. If the contacted Tracker is handling a Swarm, the Tracker will maintain a list of

the IP addresses of Peers participating in that Swarm. In response to the inquiry from the BT Client Software to the Tracker with respect to a specific hash, the Tracker responds by sending to the BT Client Software a list of IP addresses of other Peers in the Swarm. With these other located Peers, the individual user’s (i.e. Leecher’s) computer, as managed by the BT Client Software, downloads and uploads fragments of the sought BT Content File. During acquisition of a BT Content File, typically some Peers and Trackers drop out of the Swarm and new ones join. 30. Although an individual user (at first a Leecher) may have initially wanted a copy

of the BT Content File, whether the user receives it or not, depends on a number of factors, all of which are independent of the isoHunt Search Engine and isoHunt Website. Once the individual user completes the download of the BT Content File to the user’s computer, the user (up to that point in the process, a Leecher) automatically becomes a Seeder.

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31.

A complete copy of a BT Content File is obtained only from other Peers in the

Swarm and is processed through the user’s BT Client Software. No content (not even a fragment of a BT Content File) is obtained from or passes through the isoHunt Website (with the exception of a BT Content File whose copyright owner has requested Defendant isoHunt to assist in distribution). How the isoHunt Search Engine works - by indexing metadata (dot-torrent files) of BT Content Files 32. The isoHunt Search Engine does not (and cannot) look at BT Content Files. It To continue the notional example of

only indexes the metadata of a BT Content File, i.e. the associated dot-torrent file (as described in paragraph 12 of this Response). paragraph 13 of this Response, the isoHunt Search Engine only locates dot-torrent files that have BT Content File names that have words related to the (user-entered) word “matrix”. 33. In particular, the isoHunt Search Engine uses automated processes (sometimes

called “bots’, “spiders” or “crawlers”). The isoHunt Search Engine’s “spiders” “crawl the Web”, as it were, to index other BitTorrent index sites and, in particular, to index their dot-torrent files, and stores the dot-torrent files or the links thereto, in its database. The isoHunt Search Engine indexes solely on the names of BT Content Files that their initial Seeders give them, which names are part of their metadata which is stored in their associated dot-torrent files. 34. The isoHunt Search Engine indexes over 540 BitTorrent index sites on the Web

that are run by different operators. 35. Users of the isoHunt Website can also upload dot-torrent files thereto and the

isoHunt Search Engine will include in its own index any user-uploaded dot-torrent files. The number of dot-torrent files uploaded on isoHunt’s Website by users thereof, is negligible compared to those found by indexing those over 540 BitTorrent index sites. 36. The isoHunt Search Engine is general in that it indexes the entirety of the publicly

accessible Web for dot-torrent files and caches them in its database. It is also general in

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the sense that it is content-agnostic (i.e. it knows nothing of the BT Content File that any particular dot-torrent file relates to) and accordingly indexes files of all types and categories. The isoHunt Search Engine is a general aggregator, indexing other BitTorrent index sites for any and all dot-torrent files and making them readily accessible to any visitor to search. 37. The isoHunt Search Engine is not a typical BitTorrent website because it indexes

other BitTorrent index sites. In other words, it is an indexer of other directories and indices, and can be considered a “super-indexer”. 38. The goal of isoHunt Search Engine is to construct a general and broad index of

dot-torrent files on the Web. Operators of other indexing sites are invited to suggest their sites to be added to isoHunt Search Engine’s list of sites to index. 39. The isoHunt Search Engine does not present or represent dot-torrent files in a

manual or deliberate way to foster copyright infringement. Categories found on the isoHunt Website are generalizations such as “Video”, “Audio”, “Applications”, “Books” and the like, and as such, are based primarily on the technical format of the BT Content File referred to in the dot-torrent file that is indexed. In particular, the Defendant isoHunt’s automated process categorizes files according to various objective factors such as file extensions of the file names given to the dot-torrent files by the initial Seeder; for instance, “.wmv” stands for “Windows Media Video” and means that the file will be automatically classified as “Video”; and “.mp3” means that the file will be classified as “Audio.” Maintenance and Human Alterations to the isoHunt Website 40. The isoHunt Website runs automatically 24 hours per day, day after day,

indexing, performing automated self-maintenance, and being open for individual users to visit and use the isoHunt Search Engine. 41. Although the vast bulk of the isoHunt Search Engine processes runs without

human knowledge or intervention, the Defendant isoHunt performs some intervention

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measures beyond basic system maintenance. All such interventions are responsive to a human or other serious stimulus from outside the isoHunt Website. 42. The most significant human intervention undertaken by the Defendant isoHunt

relates to copyright issues. The United States Digital Millennium Copyright Act (“DMCA”) provides a “notice and take-down” policy and process, and although such United States law is not binding on Canadian activities, the Defendant isoHunt has informally but diligently without exception followed the process since 2004 as a practical way of addressing copyright concerns. According to this process, when requested by a person purporting to represent the owner of the relevant legal rights to a work, the Defendant isoHunt removes from the isoHunt Search Engine the requested dot-torrent (metadata) files and links thereto. If sufficient detail is provided by the requester to enable the Defendant isoHunt to identify the requested dot-torrent files, the Defendant isoHunt strives to meet the request within 1 to 7 days of receipt of the request. Most of the time, the Defendant isoHunt responds within the same day. 43. This “notice-and-take-down” policy is applied by the Defendant isoHunt

regardless of the jurisdiction or nationality of copyright law that is alleged by the requester to have been infringed. 44. The isoHunt Search Engine does not host any BT Content Files. No BT Content

Files are posted on or pass through the isoHunt Website (except on the express request of their copyright owners that such BT Content Files be posted on the isoHunt Website). isoHunt’s Other Websites: www.torrentbox.com and www.podtropolis.com 45. The Defendant isoHunt also operates two other websites on the Web called

www.torrentbox.com and www.podtropolis.com (the “Other Websites”). 46. The Other Websites are operated on a virtually identical basis as the isoHunt

Website. 47. Like on the isoHunt Website, there is on both of these Other Websites, a forum

for individuals to discuss matters of common interest. Users of these Other Websites can

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also upload dot-torrent files (but not BT Content Files) which are then indexed on the website in question. Each of these Other Websites has its own search engine which users can use to search its index of uploaded dot-torrent files. The Other Websites do not index dot-torrent files of other BitTorrent index sites. 48. When the isoHunt Search Engine indexes the over 540 BitTorrent index sites, it

includes the Other Websites in its indexing. 49. The Other Websites employ an identical “notice and-take-down” policy and

process as for the isoHunt Website. Division 3—Additional Facts 50. The BitTorrent protocol technology was developed in part in response to the

desire to distribute and share large files without the disadvantages of being restricted to transfer between only two computers or of using a physical intermediary such as a compact disc. 51. An example of large files would be the entirety of the “Open Source Software” Many of the world’s consumer computer applications, super-

files of the Linux Operating System, typically shared cost-effectively through the use of BitTorrent technology. Source Software. 52. Open Source Software is software that is licensed to a user that typically permits computer applications and even smartphone applications run on Linux or other Open

it to be copied, modified, redistributed, and used by a user without discriminating on the basis of the hardware, technology or user, and without a license fee, provided the user complies with certain license terms (typically, attribution of upstream authorship and granting downstream users the same rights that this user has in the licensed software). There is no infringement of copyright when Open Source Software is copied, modified, redistributed or used in compliance with such terms. 53. Electronic digitalization of musical, photographic, videographic and literary

works has become common and is replacing older forms of recording such works. Often,

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the digital versions of musical, photographic, videographic, software and literary works are very large. 54. Numerous creators of original music, photographs, videos, software and literary

works are increasingly making the electronic files of their creations freely available for public viewing and sharing. They earn their income in relation to their creative works either directly by digital retailing online or other retailing formats or indirectly through other means (for example, live concerts and merchandising). 55. Often, emerging and established creators of music, photographs, videos, software

and literary works make the digital version of their creative works freely available for copying and sharing on the Web as a means of promoting themselves and their creations and/or of establishing platforms from which they can develop income-producing activities or license others to do so. 56. Open Source Software continues to be developed in increasing quantity and

quality. For example, a significant percentage of all public Web servers in the world (in the order of two-thirds) operate on Open Source Software. If BitTorrent technology and BitTorrent-specific search engines were not available, the costs of distribution of large Open Source Software would be an obstacle to the dissemination and growth of such software. 57. The sharing of files containing musical, photographic, videographic, software and

literary works increases public awareness of such content. The concept of sharing and redistributing is now a fundamental part of the Web’s and, in particular, BitTorrent technology’s contribution to society, culture, the arts, science, commerce, politics and humanity at large. The sharing and redistributing is done on an international basis with individuals participating from different countries. The degree of sharing of content (including information and opinions) is now at the highest level in history within Canada and internationally. 58. The large and accelerating production, reproduction and proliferation of files on

the Web is effected by numerous individuals, who are consumers and/or creators of files.

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To search and locate files of interest among the immense number of files on the Web, a Web search engine is an important tool. Without an information location tool like a Web search engine, the content of the Web, including files containing information and opinions, would not be reasonably accessible to many individuals. The state of Web search engine technologies affects the proper utilization and development of the Web. Constraining the use and development of Web search engine technologies would have adverse effects on the dissemination of information and opinions, in particular, and on the long term interests of society as a whole, both in Canada and internationally, and would create practical obstacles to proper utilization and dissemination of content through the Web. Furthermore, a BitTorrent-specific search engine is a more effective information location tool for dot-torrent files than generic Web search engines. 59. The Defendant Fung developed the isoHunt Search Engine and Website to be the

most effective BitTorrent-specific, content-agnostic Web search engine. 60. In the initial part of the isoHunt Search Engine’s development, many individual

users were interested in Open Source Software such as the Linux Operating System files. Such files are very large and their physical distribution for free presented and still presents obstacles. The Defendant Fung continued and still continues to improve the effectiveness of the isoHunt Search Engine (and thereby the quality of user experience in respect of all files that are distributed by BT Technology on the Web). 61. The BitTorrent technology file-sharing process ultimately results in an identical

digital copy of the original Seeder file. The Defendant Fung used the term “iso”, which is the suffix for any Linux ISO image files, as a metaphor for any large file and thus named the search engine “isoHunt”. 62. In developing and continuing to develop the isoHunt Search Engine, the

Defendant Fung was giving expression and continues to give expression to his creative technical and business processes. 63. In using the isoHunt Search Engine, the isoHunt Website and the Other Websites,

users are choosing the search queries and categories of dot-torrent files based on their

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personal interest. The isoHunt Search Engine, the isoHunt Website and the Other Websites do not tell the users what types of files to search for. 64. The “Top Searches” lists of music, video or literary works presented by the

isoHunt Website to a user are not decided or suggested by the Defendants but rather are the result of the cumulative expression of all of the previous users who have conducted their searches and thereby effectively created those lists. In essence, the users of the isoHunt Website and isoHunt Search Engine “vote” with their searches and so the “Top Searches” lists represent the expression of collective choices made by the users. 65. Since approximately 2008, the tracker functionality of the Other Websites for

users in Canada and the United States has been disabled and those users use other Trackers, if at all. (The isoHunt Website has never had tracker functionality.)

Part 2: RESPONSE TO RELIEF SOUGHT 66. The Defendants consent to the granting of the relief sought in none of the

paragraphs of Part 2 of the Notice of Civil Claim. 67. The Defendants oppose the granting of the relief sought in paragraphs 1(a) to (j)

of Part 2 of the Notice of Civil Claim. 68. The Defendants take no position to the granting of the relief sought in none of the

paragraphs of Part 2 of the Notice of Civil Claim. 69. The Defendants seek costs.

Part 3: LEGAL BASIS 70. The Defendants have not infringed and do not infringe the copyrights of any of

the Plaintiffs’ Sound Recordings. 71. Every allegation of infringement of any of the Plaintiffs’ Sound Recordings is

lacking in particularity as to which users are alleged to have infringed which copyrighted

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works and under what circumstances. Such users may have defences and exceptions to copyright infringement, including without limitation, those known as “fair dealing”, “private copying” and “permitted acts” as provided by ss. 29 to 32.2, ss. 79 et seq. of the Copyright Act, RSC 1985, c. C-42 (the “Copyright Act”), all of which the Defendants cannot plead to until Plaintiffs’ allegations about such user context are sufficiently pleaded and the user defends. 72. By designing and publishing on the Web the isoHunt Website and the the isoHunt

Search Engine, the Defendants engaged in expressive activity protected by s. 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”) and in no way participated in the infringement, if any, of the copyrights, if any, in any of the Plaintiffs’ Sound Recordings so as to violate s. 27 of the Copyright Act. 73. By designing and publishing on the Web the Other Websites, the Defendants

engaged in expressive activity protected by s. 2(b) of the Charter and in no way participated in the infringement, if any, of the copyrights, if any, in any of the Plaintiffs’ Sound Recordings so as to violate s. 27 of the Copyright Act. 74. By operating the isoHunt Website, the Defendants do not participate in the

infringement, if any, of the copyrights, if any, of any of the Plaintiffs’ Sound Recordings so as to violate s. 27 of the Copyright Act. 75. By operating the Other Websites, the Defendants do not participate in the

infringement, if any, of the copyrights, if any, in any of the Plaintiffs’ Sound Recordings so as to violate s. 27 of the Copyright Act. 76. Specifically, by operating the isoHunt Website, the Defendants do not “authorize”

any reproduction of the Plaintiff’s Sound Recordings, as that word is used in ss. 3, 15 and 18 of the Copyright Act. 77. Specifically, by operating the Other Websites, the Defendants do not “authorize”

any reproduction of the Plaintiff’s Sound Recordings, as that word is used in ss. 3, 15 and 18 of the Copyright Act.

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78.

To the extent that the word “authorize” in ss. 3, 15, and 18 of the Copyright Act is

interpreted or has been interpreted to include the types of activities conducted by the Defendants in operating the isoHunt Website and only to that extent, then pursuant to s. 2(b) of the Charter, those provisions are not operative and are of no force and effect as against the Defendants in that they violate the freedom of expression of the Defendants and that infringement cannot be justified pursuant to s. 1 of the Charter. 79. To the extent that the word “authorize” in ss. 3, 15, and 18 of the Copyright Act is

interpreted or has been interpreted to include the types of activities conducted by the Defendants in operating the Other Websites and only to that extent, then pursuant to s. 2(b) of the Charter, those provisions are not operative and of no force and effect as against the Defendants in that they violate the freedom of expression of the Defendants and that infringement cannot be justified pursuant to s. 1 of the Charter. 80. In the alternative, to the extent that the word “authorize” in ss. 3, 15 and 18 of the

Copyright Act has been or may be interpreted to include the types of activities conducted by the Defendants in operating the isoHunt Website and only to that extent, then the word “authorize” should be instead construed so as not to include the types of activities conducted by the Defendants in operating the isoHunt Website so as to ensure that ss. 3, 15 and 18 of the Copyright Act do not violate the freedom of expression guaranteed to the Defendants by s. 2(b) of the Charter. 81. In the alternative, to the extent that the word “authorize” in ss. 3, 15 and 18 of the

Copyright Act has been or may be interpreted to include the types of activities conducted by the Defendants in operating the Other Websites and only to that extent, then the word “authorize” should be instead construed so as not to include the types of activities conducted by the Defendants in operating the Other Websites so as to ensure that ss. 3, 15 and 18 of the Copyright Act do not violate the freedom of expression guaranteed to the Defendants by s. 2(b) of the Charter. 82. The sharing of content, including of BT Content Files, by individuals using

BitTorrent technology, in particular, and more generally, “peer to peer” (P2P) technologies), across Canada and around the world, has contributed to the most prolific

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exchange of cultural, social, technical, scientific, commercial and political information, opinions and files that the world has ever seen. This sharing is a profound exercise, both individually and collectively, of the fundamental freedom of expression protected by s. 2(b) of the Charter and by international law. 83. This sharing, copying and accumulation of information, opinions and files that

has been effected by the development and massive use of the Web, in general, and by “peer to peer” (P2P) technology and BitTorrent technology (and future P2P technologies that will be developed and evolved to modify or supplant BitTorrent technology), in particular, is fundamental to the advancement of the Canadian population and the advancement of humanity at large. 84. The sharing, copying and accumulation of information, opinions and files is done

on an international basis with individuals participating from a multitude of countries and jurisdictions, each exercising in his or her own capacity, his or her fundamental freedom of expression in so participating, and also exercising collectively their fundamental freedom of expression. This sharing, copying and accumulation is not, therefore, a uniquely Canadian phenomenon but represents a global evolution of the human condition and of the human capacity to communicate. 85. This collective exercise of fundamental freedom of expression contributes to the

expansion and development of all fields of human endeavour, including but not limited to music, theatre and theatric arts, fine arts, literature, science, commerce, politics and general human communication and interconnectedness. 86. The global nature of the sharing, copying and accumulation of information,

opinions and files currently enabled by the BitTorrent technology, in particular, and “peer to peer” (P2P) technology, in general, and their fundamental importance to the present and future development of the Canadian population and of humanity at large, must be considered in the context of interpreting the word “authorize” in ss. 3, 15 and 18 of the Copyright Act.

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87.

When the factors outlined by paragraphs 50 to 58 and 82 to 86 of this Response to

Civil Claim are considered, the word “authorize” should be construed so as not to include the types of activities conducted by the Defendants in operating the isoHunt Website or the Other Websites and thereby ensuring that ss. 3, 15 and 18 of the Copyright Act do not violate the freedom of expression guaranteed to the Defendants by s. 2(b) of the Charter. 88. To the extent that the word “authorize” in ss. 3, 15, and 18 of the Copyright Act,

is interpreted or has been interpreted to include the types of activities conducted by the Defendants in operating the isoHunt Website or the Other Websites and only to that extent, then pursuant to s. 2(b) of the Charter and considering the factors outlined by paragraphs 50 to 58 and 82 to 86 of this Response to Civil Claim, those provisions are not operative and are of no force and effect as against the Defendants in that they violate the freedom of expression of the Defendants and that infringement cannot be justified pursuant to s. 1 of the Charter.

Defendants’ address for service:

Grant Kovacs Norell 400 – 900 Howe Street Vancouver, BC V6Z 2M4 Attention: Arthur M. Grant (Telephone: 604-609-6699)

Fax number address for service (if any): E-mail address for service (if any): Dated: February 27, 2012.

604-609-6688 N/A

Signature of lawyer for the Defendants Gary Fung & isoHunt Web Technologies Inc. (Arthur M. Grant) ❒ filing party  lawyer for filing party

This RESPONSE TO CIVIL CLAIM is filed by Arthur M. Grant of the firm Grant Kovacs Norell, Barristers and Solicitors, whose place of business and address for service is 400 – 900 Howe Street, Vancouver, BC, V6Z 2M4, Telephone: (604) 609-6699, Fax: (604) 609-6688 [File No. 1725-001].