There is an old saying that “one man’s meat is another man’s poison”, something that came to mind the other day when I read two very different accounts of the Canadian Federal Court decision reached on November 15 granting blocking orders against two sites (GoldTV.biz and GoldTV.ca) that were providing pirated streaming content to Canadian households from offshore servers. The order, issued in response to a complaint brought by Bell Media, Groupe TVA and Rogers Media, requires all of Canada’s major ISPs (including those owned by Bell, TVA and Rogers), to undertake domain name server (DNS) and IP address blocking against the defendants. The order was unopposed by all the ISPs with one exception–Teksavvy, a small reseller that for the most part provides its services by purchasing last-mile access from its large telecom competitors, as permitted by government regulation.
The action started off back in July when the three plaintiffs sued GoldTV for copyright infringement and sought a temporary and permanent injunction to close it down. They won their injunctions but this did not stop GoldTV who not only failed to defend themselves in court, but failed to obey the injunctions. GoldTV’s content continued to be available to Canadian consumers in violation of the injunction. Its servers are located somewhere overseas (in cyberspace, as it were) with only an online presence in Canada, a “business model” typical of offshore pirate sites that seek to avoid national law by establishing themselves beyond the reach of national courts. Having secured injunctions that proved ineffective and unenforceable, the plaintiffs then took the next logical step and sought a blocking order (injunction) requiring ISPs in Canada to block access by their users to the two named sites. With this order having now been granted, Canada joins more than 40 countries globally that have added the weapon of pirate site blocking to their anti-piracy arsenals, including the UK and Australia where it has been particularly effective.
The first commentary out of the starting blocks after the Federal Court’s November 15 decision was from Barry Sookman, noted IP attorney and partner at the law firm of McCarthy Tetrault. After taking the reader through the reasoning of the court, Sookman summed up by stating;
“The decision of Justice Gleeson to make the site blocking order was a carefully reasoned one. He considered the evidence and the arguments for and against site blocking orders and decided there was both the jurisdiction to make the order and that it was just and convenient that it should be made. Like courts around the world he found that a site blocking order would be effective and dissuasive, could be implemented by ISPs using reasonable and available measures, and would not result in the violation of rights of freedom of speech or net neutrality.”
The following day, Prof. Michael Geist of the University of Ottawa, a well-known and prolific commentator on copyright (as well as other issues, such as privacy and telecoms regulation) launched a counter-attack criticizing the judgement;
“The case is an important one, representing the first extensive website blocking order in Canada. It is also deeply flawed from both a policy and legal perspective, substituting the views of one judge over Parliament’s judgment and relying on a foreign copyright case that was rendered under markedly different legal rules than those found in Canada.”
Huh? Are we talking about the same case? It is pretty clear that Sookman’s meat is Geist’s poison.
I am quite sure that Mr. Sookman is more than capable of analyzing and responding to Dr. Geist’s arguments (as he has done on more than one occasion in the past), one such response being a fact-checking rebuttal of Geist’s criticism of the proposal by a coalition of content providers (FairPlay Canada) last year to establish an administrative review process under the auspices of the broadcast regulator, the CRTC, to block offshore pirate sites. However, let me add a few thoughts of my own as to why the attacks on the Federal Court’s site blocking decision are wrong. (Dr. Geist is not the only one to criticize it; this report reprinted in Engadget raises the unwarranted fear of “further internet censorship”).
In his criticism of the GoldTV decision, Dr. Geist repeats assertions he made at the time of the FairPlay Canada application before the CRTC, claiming that blocking of offshore copyright infringing sites is incompatible with net neutrality (the principle that ISPs are required to enable access to all content regardless of source, without favouring or restricting/blocking particular products or sites), and also threatens freedom of expression. This is nonsense. There are multiple examples of jurisdictions that have enshrined the principle of net neutrality yet nonetheless use site blocking orders for specific purposes. Net neutrality is designed to prevent ISPs and other internet intermediaries from favouring or discriminating against legal content, (for example, by accepting payment to privilege certain content over others or to provide a boost to in-house content), not to require that any and all content on the internet be made available on equal terms. We only have to think of the examples of hate sites, child pornography, sites that promote terrorism and violence, etc. as examples. Net neutrality and freedom of expression have reasonable limits, and net neutrality should not apply to illegal content. As the Federal Court stated, based on the decision of the Supreme Court of Canada in the Google v Equustek case,
“jurisprudence has not, to date, accepted that freedom of expression requires the facilitation of unlawful conduct…Similarly I am not convinced that the principle of net neutrality, or the common carrier doctrine, is to be applied in a manner that requires ISPs to facilitate unlawful conduct.”
But Dr. Geist’s arguments against the decision are not just about the facts of the case, but also about the process. He seems to argue that the Court should have declined to hear the case because an ongoing review of the Copyright Act is underway in Parliament, despite the fact that there is nothing in existing legislation to prevent the issuance of a site blocking order. It is worth noting that the case was brought by the plaintiffs as a result of the unsuccessful attempt by the FairPlay Canada coalition to get the CRTC to act against piracy. Although the CRTC acknowledged that there was evidence that piracy hurts Canadian broadcasting and the economy in general, it declined to exercise its authority arguing that it did not have jurisdiction under the Telecommunications Act (Section 36). Despite this decision, respondent Teksavvy argued, among other points, that the Federal Court did not have jurisdiction because site blocking falls within the CRTC’s mandate—despite the explicit decision by the CRTC that it did not!
In its decision on the FairPlay Canada application in which it stated that it did not have jurisdiction and therefore could not accept the FairPlay application, the CRTC also said that;
“The Commission acknowledges that there is evidence that copyright piracy results in harm to the Canadian broadcasting system and to the economy in general. However, there are other avenues to examine the means of minimizing or addressing the impact of copyright piracy, including the ongoing parliamentary review of the Copyright Act and the expert panel review of the Telecommunications Act and the Broadcasting Act.” (emphasis added).
Dr. Geist claims this means that the CRTC was saying the issue should be left to government to address, not the courts. But the Commission did not say this. It said there were “other avenues” to address the impact of copyright piracy, one of which is the Parliamentary review of the Copyright Act, another being the expert panel review of the Telecommunications and Broadcasting Act. But these are not the only avenues. Another clearly is to pursue legal remedies through courts, which is what the plaintiffs did, having been unsuccessful in arguing for an administrative and regulatory process under the CRTC. It is hard to see how this is an abuse of process.
Geist also criticizes the plaintiffs because in their earlier FairPlay submission to the CRTC they argued that an administrative process would be better than going through the courts. Well, it would have been better (faster, cheaper etc.) but since the CRTC declined to assert jurisdiction, one can hardly criticize them for pursuing another avenue of redress, as recommended by the Commission.
Finally, Dr. Geist criticizes the action of the Federal Court as a “judge making a policy choice best left to elected officials”. To support this argument he refers to the report of the Parliamentary Committee reviewing the Copyright Act and notes that it recommended that following a review of the Telecommunications Act, the Government of Canada consider the means to provide injunctive relief in a court of law for deliberate online copyright infringement, noting the importance of net neutrality. Fine, nothing wrong with that. However, regarding site blocking, the Committee also said, and I quote;
“The Committee does not support the development of an administrative regime. It is for the courts to adjudicate whether a given use constitutes copyright infringement, and to issue orders in consequence. The courts already have the expertise necessary to protect the interests of all individual parties”.
And that is exactly what the Federal Court did. Dr. Geist doesn’t like the result and so has attacked the Federal Court for what he calls its “activist judicial approach” and criticizes it for “substituting the views of one judge over Parliament’s judgment”. I personally find this criticism very troubling. The courts are there to interpret the law and this was what was done. You can disagree with the conclusion, which is why there is an appeal process, and Dr. Geist argues that the case should be appealed. This seems unlikely however for unless TekSavvy wants to challenge the decision, it is hard to think who would. Certainly not John Doe 1 and 2 representing GoldTV. (Update: On November 25, Teksavvy filed notice of appeal with the Federal Court of Appeal)
It may be that the Canadian Parliament will eventually get around to amending the Copyright Act to add amendments that would possibly incorporate some more explicit reference to blocking offshore copyright infringing content sites, as was the case in Australia where amendments to the law not only enabled site blocking orders to be granted but widened their scope. In Britain, by comparison, no specific new legislation was deemed necessary, the courts relying on existing law. For now, unless appealed, it appears that the Canadian courts are satisfied that the current Copyright Act gives them sufficient scope to apply site blocking remedies in cases of established, repeated infringement where injunctions have been ignored, and the defendant is unknown and inaccessible. This is encouraging for rights-holders as the current minority Parliament is unlikely to make copyright reform a priority and it may be several years before any legislative changes are made. In the meantime, rights-holders in Canada have been given a new weapon to combat online copyright piracy, and Canada has joined the numerous jurisdictions where selective site blocking of illegal content is in effect.
The growing take up of site blocking globally is testament to its effectiveness in curtailing piracy and converting consumers of pirated product to legitimate sources. In short, it works. It may be both meat and poison; meat to legitimate rights-holders who have every right to use all the tools available to combat widespread piracy from offshore sites, and poison to the pirate sites given the proven effectiveness of site blocking in curtailing piracy and pushing consumers to use legitimate sources of content. Copyright protection in Canada has taken a step forward.
© Hugh Stephens 2019. All Rights Reserved.
This blog post has been updated to reference the notice of appeal filed by Teksavvy on November 25.