Blocking Offshore Content-Theft Sites in Canada: It’s now up to the CRTC

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Comments are finally closed. The submissions are in. It’s all over but the decision (and possibly public hearings enroute to a decision, along with FairPlay’s response). We will have to wait and see whether the CRTC (Canadian Radio-Television and Telecommunications Commission) steps up to the plate and discharges its responsibilities, or ducks the issue and strikes out.

March 29 was the extended deadline for submission of comments on the proposal by the 25-member FairPlay Canada coalition to establish an Independent Piracy Review Agency (IPRA). The function of the IPRA would be to review offshore pirate websites and make recommendations to the CRTC to issue orders requiring ISPs in Canada to block those websites that are “blatantly, overwhelmingly or structurally engaged” in piracy . The last time I checked there were 200 pages of submissions, with 50 submissions per page, or about 10,000 in total. I doubt if anyone other than a paid CRTC employee will read them all, but in any case the main message of many of them, based on the following suggested template circulated by tech industry advocate and apologist Open Media, will be to oppose the proposal. Open Media has helpfully provided online petitioners with their key talking points, lest they are unsure of why this is such a “bad idea”.

Dear Commissioners,

I am gravely concerned about the recent proposal from the so-called “FairPlay Canada” coalition to introduce a mandatory website blocking system in Canada, administered by the CRTC. This proposal would result in sweeping Internet censorship, penalize everyday online activities, and threaten Canada’s Net Neutrality rules that keep the Internet a level playing field for all. This is simply unacceptable, and not the Canada that I want to live in.

The proposal put forward by FairPlay Canada is intended to curb piracy, but as we know, piracy is at a historic low in Canada. This is a solution in search of a problem. This proposal is downright dangerous. It’s a slippery slope to censorship. To start blocking one type of content opens the door for all kinds of other requests to block content — some of which may be legal, but just unpopular. Putting a person, agency, or other non-judicial body in charge of deciding what we can and cannot see online fundamentally changes the foundations of the Internet as we know it. This goes against free expression, Net Neutrality, and the open Internet as a whole — it even has the potential to violate the Charter of Rights and Freedoms.

The open Internet is a critical tool for my everyday life. Unaccountable corporations should not be able to pick and choose what I see online. I am writing to you today because I hope that you can see that this is not the right future for Canada’s Internet. I sincerely urge you to do the right thing, and reject this radical and inefficient proposal.

These exaggerations and unsupported statements, such as claiming that the FairPlay proposal will result in “sweeping internet censorship”, “penalize everyday online activities” (like accessing offshore websites hosting pirated content and malware?), and “threaten Net Neutrality and potentially violate the Charter of Rights”, are classic examples of scare tactics designed to stampede uninformed citizens to add their name to this screed and push the “send” button. When you get thousands of submissions all saying roughly the same thing, you have to wonder how much thought has actually gone into each submission. It’s easy to get people worked up to oppose something (particularly if they don’t really understand the details), and if they are egged on by sweeping statements claiming infringement of basic rights. These sort of mass campaigns, orchestrated by tech industry lobbyists (like Open Media), are sometimes called “astroturfing”. For the uninitiated—which I was until recently—“astroturfing” refers to “organized activity that is intended to create a false impression of a widespread, spontaneously arising, grassroots movement in support of or in opposition to something (such as a political policy) but that is in reality initiated and controlled by a concealed group or organization”, according to Mirriam-Webster.

Michael Geist of the University of Ottawa, one of the champions of Canada’s anti-copyright movement, has complained about “astroturfing” because a number of the submissions to the CRTC from production companies in support of the FairPlay Coalition proposal contain language that echos material on the FairPlay website. There is no doubt that the members of the Coalition have appealed to others in the industry with similar concerns about growing offshore piracy. The result is that small production companies, many of whom are not familiar with campaigns of this sort or who do not have the resources to research and draft lengthy submissions, have resorted to “cut and paste” from some of the Fairplay FAQs. Is this astroturfing? If it is, how would you describe Open Media’s tactics? I think this is a case of the pot calling the kettle black.

In any event, no-one can accuse Dr. Geist of hiding his light under a bushel. He has produced a 16 part series on his blog as to why the site blocking proposal is responsible for just about everything but bad breath. The trouble is many of the “facts” that he relies on are inaccurate, misinterpreted and do not withstand scrutiny. His blog posts have been carefully analyzed, deconstructed and rebutted in an exhaustive analysis produced by copyright lawyer Barry Sookman, “Fact checking Michael Geist’s criticisms of the FairPlay site blocking proposal.” As Sookman points out, Geist’s criticisms;

“…are based on inaccurate and misleading facts and arguments, unsubstantiated and incorrect assertions about international norms and Canadian and international law. He makes selective and misleading use of references and quotations and relies on cases that have been overturned or superseded by subsequent courts.”

Much is made by Dr. Geist of the fact that the Coalition proposal involves an administrative agency examining proposals for site blocking, and then making recommendations to the CRTC, which has the power through Section 36 of the Telecommunications Act to authorize blocking orders. He claims that the absence of a court order would put Canada at odds with just about everyone else. This has been effectively refuted by Sookman who points out that about one-third of countries (7 in all) that have site blocking provisions use government agencies to carry out this role, outside the court system (but with avenues for review and appeal, as with the FairPlay proposal). Given the position of the CRTC that it, and only it, can authorize site blocking (independent of any court rulings) it seems logical to me that the content coalition represented by FairPlay would start with the premise that if the CRTC has the power to take such action, (subject, as with any CRTC decisions, to court review), then that is the place to start.

I don’t know if that is why the Coalition chose to propose an administrative agency like the IPRA rather than tackling the problem through the courts (which might, additionally, require legislation), but to me this flows logically from the CRTC’s interpretation of its exclusive role and the fact that it already has the power to order blocking of selected sites. However, let’s suppose for an instant that at some point down the road—if the proposal for a site blocking regime based on an administrative body like the IPRA making recommendations to the CRTC is not accepted—the Coalition instead pursues a solution where blocking orders are issued by courts. Would this be satisfactory? After all, it is what Michael Geist insists is the only correct procedure to follow. He has stated, in discussing the Coalition’s proposal;

One of the most obvious problems – indeed one that is fatal – is the absence of court orders for website blocking. The attempt to avoid direct court involvement in blocking decisions means the proposal suffers from an absence of full due process, raising a myriad of legal concerns.

What if the Coalition proposal morphed into a court-sanctioned process? I don’t know if this is likely to happen but if it does, I can already hear the clashing of gears as the back-pedalling begins on the part of Michael Geist and others opposed to any form of site blocking to protect Canada’s content industries. Instead of attacking the proposal on the basis that it is conducted by an administrative body, new arguments would be invented.

One of these is the old chestnut that anything that even attempts to regulate consumer behaviour on the internet will cost jobs and hamper innovation. A group called the Internet Infrastructure Coalition, based in Washington DC, filed a submission to the CRTC on the site-blocking proposal. According to this submission, a site blocking regime in Canada would “weaken Canada’s economy” and be detrimental to small businesses seeking to engage in disruptive technologies. (The fact that both Google and Amazon are members of this Internet Coalition makes its focus on the concerns of small business a bit hard to swallow.) But on the jobs issue, without offering a shred of evidence, this submission goes on to say;

“After careful review of the FairPlay proposal, we believe that it will lead to significant loss of high-wage, high-tech jobs in our industry and other industries that are directly or indirectly supported by our industry. These impacts will diminish the attractiveness of Canadian companies to foreign customers while also reducing the Canadian Internet industry’s ability to compete with foreign competition within its own borders”.

This is total nonsense. Why or how could the establishment of a due process regime leading to blocking of massively infringing offshore content-theft websites used by some consumers make Canadian high-tech companies less attractive to foreign investors? How would such a regime hinder Canadian companies from competing with foreign companies in Canada when the blocking regime targets offshore piracy websites found to be running a business based on content theft? This line of argumentation suggests that Canada should strive to be the “lowest common denominator” when it comes to protection of IP. What about countries like the UK, France, Germany, Australia, South Korea and so on where site-blocking regimes already exist? Have these countries been subjected to “significant loss” of high tech jobs, and found themselves unable to compete with foreign competition within their own borders? Of course not. There is no substance to these scare tactics about job losses. Where job loss is occurring is in the cultural sector owing to the flow of revenues to offshore pirate sites and denial of revenues to legitimate Canadian content providers.

Although it is just one of the roughly 10,000 submissions sent to the CRTC, it nonetheless earned a shout-out from Michael Geist which is why I have bothered to comment on it. This self-serving and misleading document drummed up by Google and its cyber-libertarian acolytes will, along with all the others, now disappear into the maw of the CRTC to be digested. The next step may be public hearings or perhaps the Commission will realize that all that can be said has been said, and just make its decision (after FairPlay has been given an opportunity to respond).

In terms of sheer numbers of submissions, there is no question that quantitatively the “nays” have it. It is always easier to work people up to oppose something than to implement new policy, especially when astroturfing takes place on a massive scale. As one commentator has pointed out, just because those opposed to a measure outnumber those supporting it, (when it comes to public submissions which are normally an infinitesimally small proportion of the voting population), it doesn’t mean that the opponents are right. You can repeat an false statement a thousand times, but that doesn’t make it true.

Hopefully, the Commissioners and staff at the CRTC will give the FairPlay Canada proposal a fair and thorough review. However, if the CRTC is not prepared to exercise its authority to help protect Canadian broadcasters and creators from unfair foreign content-theft websites, then something else will have to be done. Canada’s broadcasting and content industries are entitled to expect their government to put in place the necessary regulatory measures to protect them from offshore pirates, particularly given the importance the Canadian government says it accords to cultural industries. The submissions are now all in. All we can do is wait. Let’s hope the CRTC steps up to the plate and discharges its responsibilities rather than striking out.

© Hugh Stephens 2018. All Rights Reserved.

 

4 thoughts on “Blocking Offshore Content-Theft Sites in Canada: It’s now up to the CRTC”

  1. “Given the position of the CRTC that it, and only it, can authorize site blocking (independent of any court rulings) it seems logical to me that the content coalition represented by FairPlay would start with the premise that if the CRTC has the power to take such action, (subject, as with any CRTC decisions, to court review), then that is the place to start.”

    I didn’t file anything with the CRTC, but to me this line of thinking is what worries me about the proposal: that the CRTC is the correct place for this kind of thing because they have the power to award the remedy FairPlay wants. Whether or not they can award the preferred remedy, the CRTC doesn’t have the expertise to be adjudicating what are essentially copyright claims. And nothing in the FairPlay proposal satisfies me that the panel they hope to set up will either. Simply because a person works in the entertainment industry does not make them a copyright expert, no matter how much they might like to pretend that is the case.

    If site blocking is desired, it would be far better to have a system where the authority to award the remedy and the expertise necessary lie with the same body. That would almost certainly require Parliament to take action and I can understand why FairPlay might not want to go that route, thinking it will take too long or be too complicated. But to me, it’s not acceptable to set up a system that will result in poor decisions simply because doing it properly would be too difficult.

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    1. If the system is to work, it will be essential that the IPRA have sufficient expertise to be able to make credible recommendations. Entertainment industry executives may not be copyright experts but they will know what they have licenced and what they have not, and should be able to demonstrate that infringements of their content are occurring. This is no different than the evidence that would have to be provided to a court if the system adopted was a judicial rather than administrative one. For this problem to be tackled, we have to start somewhere and to me this is a good start. Let’s see where it leads.

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