Why the Time Has Come to Block Offshore Pirate Websites in Canada

Source: Macdonald-Laurier Institute

The following article appeared in the January 10, 2018 edition of Inside Policy, the Journal of the Macdonald-Laurier Institute.

A lot of ink has been spilled lately over reports that Canadian content owners and broadcasters, led by Bell Media but including other content players such as Cineplex and broadcaster/ISPs (Rogers, Shaw), are finally proposing a solution to the problem of rogue offshore websites streaming pirated content to Canadian audiences.

The online newsletter Canadaland claims it has obtained documents showing that Bell and others are seeking to establish a mechanism that would make recommendations to the Canadian Radio-television and Telecommunications Commission (CRTC) to require Canadian ISPs to block the most blatant of these sites – ones that are essentially set up to engage in infringing behaviour. This would mean that those Canadian consumers who want to indulge in taking for free what they should be paying for will no longer be able to do so with impunity. According to critics, such as anti-copyright commentator Michael Geist, the proposal is “dangerous, anti-speech, and anti-consumer.”

The Globe and Mail weighed in its editorial page, conflating “site blocking” with “net neutrality,” and urging that copyright infringement be handled by “Canada’s robust laws against intellectual property theft.” But that is precisely the problem. These sites are not set up just down the street within reach of Canadian courts. They have deliberately established themselves in legal “no go” zones, somewhere in cyberspace in jurisdictions with no interest or capability in enforcing intellectual property laws. It is pointless to bring legal proceedings against them in Canada because they don’t operate in Canada.

The solution, implemented or underway in more than 40 countries worldwide, including the UK, Australia, the continental EU, Korea, Singapore and others, is to establish a list of consistently and blatantly bad actors and then require ISPs operating in their national jurisdiction to block consumer access to those sites within that jurisdiction. In other words, it would enforce Canadian laws and regulations within Canada by keeping the infringing content out, in effect implementing Canadian standards at the electronic frontier.

Site blocking is undertaken all the time by ISPs for a variety of legally-sanctioned reasons.

Oh, the critics will cry. This will “break the internet.” It will offend the policy of “net neutrality.” It will censor free expression on the internet. It is anti-consumer. It is the start of the slippery slope to information control by government. All of this is hyperbole and, frankly, total nonsense.

Site blocking is undertaken all the time by ISPs for a variety of legally-sanctioned reasons. The most prominent is to stop access to child pornography but other reasons include blocking hate speech or protecting national security. Selective site blocking can be implemented in such a way as to have no negative impact on the operations of the internet, as recent studies have shown. It has no impact on net neutrality, a policy which Canada has chosen to maintain at a time when the FCC in the United States is going in the opposite direction.

Net neutrality, as defined by the CRTC, is a policy requiring that “all traffic on the Internet should be given equal treatment by Internet providers with little to no manipulation, interference, prioritization, discrimination or preference given.” At the same time, under the Telecommunications Act, the CRTC has authority to implement (or approve) the blocking of websites. Blocking illegal content is fully consistent with requiring ISPs to follow the rules of net neutrality (i.e., not to favour or disadvantage some content at the expense of others). By the same token, blocking offshore content theft websites in violation of Canadian law has no impact on net neutrality.

If site blocking is consistent with net neutrality, it is equally consistent with the protection of free expression on the Internet. All expression, in both the online and offline worlds, has limitations. The key of course, is to ensure that all legal content is protected and accessible. To ensure that what is blocked is not worthy of protection, a transparent adjudication mechanism with an appeal process must be established. This could be through the courts – although this can be slow and cumbersome, as the criminal elements that operate these offshore websites are skilled at hiding and changing their identity. Another option is to rely on a regulatory body, like the CRTC, which already has the authority.

Canadaland reported that the proposal being prepared by Bell and others would establish an “Internet Piracy Review Agency” to make recommendations to the CRTC. While this proposal has already drawn plenty of criticism even before officially seeing the light of day, there is logic in going to the agency that claims to have the statutory authority to regulate internet content, using an adjudicative body to review and recommend which sites to block, based on transparent and stringent criteria.

The proposal being prepared by Bell and others would establish an “Internet Piracy Review Agency” to make recommendations to the CRTC.

This is a proposal that deserves serious consideration. Not only does it do no harm to net neutrality or free speech, it will protect rather than harm consumers by keeping them away from pirate offshore sites that are notorious for propagating malware and computer viruses. At the same time, it will ensure that those who wish to consume content pay for it fairly, thus ensuring re-investment into more content offerings. It is hard to see how this could be construed as “anti-consumer.”

Piracy site blocking, more accurately described as “disabling access to offshore content theft websites,” has proven to be an effective tool in the countries where it has been implemented. In the UK, a study by Carnegie Mellon University showed that consistent blocking of more than 50 pirate websites in Britain caused a 90 percent drop in visits to the blocked sites, leading to a 22 percent decrease in total piracy for all users and, significantly, an increase in visits to paid legal streaming sites and consumption of videos on legal ad-supported streaming sites like the BBC. Thus site blocking not only helps curtail consumption of infringing material by consumers but also encourages take-up of legal content.

The time to seriously consider using site blocking to protect the rights of content creators and owners has clearly come. Far from being negative for internet users, the establishment of a site blocking mechanism in Canada will be positive for Canadian consumers, content producers, broadcasters and exhibitors. Let’s give it a chance.

Tightening up Online Advertising will starve Pirate Websites of their Means of Support

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It’s a truism that there is no such thing as a free lunch, and this old adage applies in spades to the phenomenon of pirate websites that allow users to access “free” content. The only thing free about the content is that it is “free” to the content theft websites because they have obtained it illegally through various means and then made it available to users who download or stream content they have not paid for. But these pirate sites are not charity operations. They need a revenue stream and that revenue stream, in the absence of any payment for the content they have purloined, is from advertising. Continue reading “Tightening up Online Advertising will starve Pirate Websites of their Means of Support”

“Copyright Trivia”: Some Works Get Longer Protection in Canada than in the US

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I hope this headline got your attention. It may be a bit of “copyright trivia” but it is nevertheless true! Read on.

It is axiomatic among many of my American friends in the content industry that copyright protection in the US, while not perfect, is better than the protection afforded to copyrighted works in Canada. That was certainly the thrust of much of the US comment at the time of the revision of Canada’s Copyright Act in 2011-12 and is a theme repeated regularly in inputs to the annual USTR Special 301 process by groups such as the International Intellectual Property Alliance (IIPA) and in the 301 Report itself. And they are not wrong. Canada’s copyright system is not terrible, but it could certainly be improved. Among the improvements needed are revisions to overly-wide fair dealing exceptions such as those for “education” and “user generated content” that were introduced in the revised 2012 Act. Continue reading ““Copyright Trivia”: Some Works Get Longer Protection in Canada than in the US”

Disabling Access to Infringing Offshore Websites (Site Blocking) and Free Speech on the Internet: There is no Contradiction

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If a transparent, government-regulated mechanism, with an appeal process, was put in place to require ISPs in Canada to block access to offshore pirate websites that “blatantly, overwhelmingly or structurally” engage in or facilitate copyright infringing activities, would that constitute a “dangerous, anti-speech and anti-consumer proposal”? Apparently so, according to anti-copyright commentator Michael Geist, echoed by US online magazine, TechDirt, which headlined its story Canadian ISPs And Hollywood Agree On Plan To Make Themselves Judge, Jury and Website Executioner”. Clearly hyperbole knows no national boundaries. Continue reading “Disabling Access to Infringing Offshore Websites (Site Blocking) and Free Speech on the Internet: There is no Contradiction”

That Was the Year That Was: Looking Back at Some International Copyright Issues in 2017

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2017 was quite a year on the trade policy front. It saw Britain triggering the Brexit exit clause and then trying to work out with the EU the modalities for UK-EU relations after British withdrawal. It saw the start of NAFTA re-negotiations between Canada, Mexico and the US, a process which has seen accusations of intransigence by the negotiating partners and has led to active debate within the US as to the wisdom of some of the US negotiating objectives. 2017 was also the year when the Trans-Pacific Partnership (TPP) was re-invented as the TPP11 (i.e. the original TPP minus the US). While all of these agreements had implications going far beyond copyright issues, copyright was very much a part of the mix. Continue reading “That Was the Year That Was: Looking Back at Some International Copyright Issues in 2017”

When “Ticking the Box” is Not Such a Good Idea

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As we get geared up for the Christmas (oops, I mean “seasonal”) shopping extravaganza, one’s thoughts turn to what to get for those hard-to-buy-for family members. Giving a good book is usually a winner, but there is always the question of “has she read it”, or “will he like it?” Or, “do they still read hard-copy books?” For a few years, buying a DVD series always seemed like a good idea but that seems to be somewhat out of fashion in this age of streaming content. Could I buy a gadget to make their viewing experience better? There are lots of offerings out there, generically known as Kodi boxes, but beware. Many are not what they seem, or put another way, many will lead consumers into a morass of grey market activity where they really shouldn’t go. And recent tests have shown that there are lots of unbranded “Kodi” boxes out there that are unsafe and don’t meet even basic electrical safety standards. (Kodi itself is a legal software installed in set top boxes). Continue reading “When “Ticking the Box” is Not Such a Good Idea”

Google’s End Run on the Canadian Supreme Court’s De-Indexing Order: Strengthening Arguments for Site Blocking

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Google has successfully convinced a judge in the tech industry-friendly US District Court of Northern California (covering Silicon Valley naturally) to issue a temporary injunction nullifying the enforceability in the United States of an order from a Canadian provincial court in British Columbia (BC), upheld on appeal to the Supreme Court of Canada (SCC), to delist from its global search results all references to Datalink Technologies Gateways and its counterfeit product, an internet router called the GW1000. Datalink was found by the BC court to have infringed the copyright and stolen trade secrets from Equustek, a BC company, and passed off Equustek’s products as its own. Continue reading “Google’s End Run on the Canadian Supreme Court’s De-Indexing Order: Strengthening Arguments for Site Blocking”