Intellectual Property Law

Gary Fung remembers years ago when the first computer he operated was a Pentium 90.

His programming skills have grown considerably since that first computer and his mastery of Pascal. Combined with his business acumen, the 25-year-old Fung now heads the popular BitTorrent search engine Isohunt and two tracking sites, Podtropolis and Torrentbox.

The Motion Picture Association of America claims in a lawsuit that Fung is a copyright scofflaw of the highest order -- facilitating the theft of millions of its copyrighted works hosted in tiny  pieces resting on servers and individuals' computers worldwide. The case, which is awaiting U.S. District Judge Stephen Wilson in Los Angeles to rule on Fung's dismissal motion, is likely to set legal precedent in the United States and perhaps abroad about the legality of torrent-tracking services.

"This is more than just about us," said Fung, who immigrated to Vancouver a decade ago with his parents who left Hong Kong when China assumed control. "I'm not building a business on the backs of others' works. There are a lot of unprotected works as well."

In short, the case tests whether torrent-tracking services such as Isohunt and others are a legal business model or a sham built on the backs of copyrighted works neither Fung nor the millions of BitTorrent users own or are authorized to reproduce or distribute.

"By design, torrent-tracking sites are the equivalent of commercial emporiums for infringing content," the MPAA said in an April court filing in its case against Fung.

The MPAA described torrent downloading as a "swarm" -- "the downloading and uploading of different pieces of a content file from many other users simultaneously."

Isohunt began about five years ago, Fung said. "I saw the potential," he said in a telephone interview  from his hometown of Vancouver, B.C. With five employees, he said, he earns enough income "to sustain ourselves by advertising dollars."

"We're not dependent on venture capital," said the former University of British Columbia computer engineering student who dropped out to ramp up his business. "I wrote Isohunt when I was in school. It kind of grew from a hobby to business. Eventually, I didn't have time for school."

Fung said he has some 18 million monthly visitors and he's tracking some 1 million-plus torrents -- prompting the MPAA to sue him in the United States in a case that is largely overshadowed by the Pirate Bay's legal troubles in Sweden.

The U.S. courts have never squarely addressed the legalities of torrent-tracking services. A U.S. judge last year ruled against TorrentSpy in a similar case. The judge, however, did not rule on the merits and instead declared that TorrentSpy, which just shuttered, was in default because it would not turn over internal documents.

The case against Fung is already having ramifications for its U.S.-based users. Fung said he has cut them off from the Torrentbox and Podtropolis trackers. Fung said he feared that the American courts, as they did in the TorrentSpy case, would demand that he turn over the names or IP addresses of its U.S. users.

His servers, he said, are in Toronto, and were located in the United States -- a fact he said that has given the U.S. courts legal jurisdiction to decide the case.

His attorney, Ira Rothken, said "there is no other ruling I'm aware of in the history of jurisprudence that having a search engine for dot-torrent files is legal or not."

Rothken's defense of Fung and other torrent-tracking services is simple: Fung is doing what the Yahoos and Googles of the world are doing: "There are no copyrighted works touching his sites. They've got to prove a infringement occurred in the United States. This isn't Grokster or Napster. There are no copying devices."

See Also:

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• Pirate Bay Future Uncertain After Operators Busted