Canada’s First Site Blocking Order: What is Driving the Objectors?

Back in November of last year, the Federal Court of Canada issued Canada’s first site blocking order, an injunction requiring a number of Canadian ISPs to block two sites (GoldTV.biz and GoldTV.ca) that were providing pirated streaming content to Canadian households from offshore servers. Since then the target of blocking has shifted as the pirate content distributors play the evasive game of domain shifting, abandoning the original blocked sites while creating new ones. The applicants need to get court approval each time the list of blocked sites is amended, an ongoing game of cat and mouse.

At the time of the Court’s decision, I commented on the diametrically opposed interpretation of the decision coming from different quarters. While noted Toronto IP attorney Barry Sookman praised the decision as “carefully reasoned”, Michael Geist of the University of Ottawa, no fan of copyright (an understatement to be sure), called the decision “deeply flawed”. Geist has been a longstanding opponent of site blocking, and as the strategy of the content providers–who formed a coalition known as Fair Play Canada–changed from initially seeking establishment of an administrative agency that would adjudicate site blocking requests to now seeking court injunctions, Geist’s opposition has shifted as well. Originally, he criticized the Fair Play Canada proposal as being non-transparent and bemoaned the absence of court orders and full due process when identifying which sites to block. Now that a court order has been issued, he has shifted gears and is criticizing the role of the courts, arguing instead that any decision on site-blocking should be made by Parliament through amendments to legislation. (Those supporting site-blocking argue that while the Copyright Act does not specifically mention targeted blocking as a remedy, it does not preclude it. What the Act does provide for is injunctive relief, which the court has granted in the form of the site-blocking order).

While right now Dr. Geist seems to be advocating for a role for Parliament, if Parliamentarians ever get around to considering explicit legislation to enable site-blocking, as Australia has done, I am willing to bet that he will be among the first witnesses appearing to argue against the proposal.

With regard to the Federal Court’s GoldTV decision, all of Canada’s major ISPs accepted the outcome with the exception of one small ISP reseller, Teksavvy, which launched an appeal. At the time that appeal was filed I wagered a rhetorical bottle of Newfoundland Screech that we would see Silicon Valley-funded groups such as the Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC) at the University of Ottawa (founded by Michael Geist in 2003) seek intervenor status to support Teksavvy’s appeal. I don’t know who to claim my bottle of Screech from but both CIPPIC and the Canadian Internet Registration Authority (CIRA), represented in part by Dr. Geist’s University of Ottawa law faculty colleague Jeremy de Beer, have filed for intervenor status in support of Teksavvy. Their brief can be read here. TorrentFreak did a pretty good job of summarizing the arguments, which fall into several categories.

Most of CIPPIC’s arguments are technical, for example, questioning whether the Court has jurisdiction to decide the question, arguing that the Telecommunications Act is the applicable legislation to regulate site-blocking, and commenting on the nature and extent of foreign site blocking laws.  The intervenors supporting the initial decision, representing a range of content owners and rights-holders, including music, publishing, and sports, argue on the other hand that the Court has competence, that the Copyright Act does not rule out injunctive relief, and the orders are fully in compliance with Canada’s international obligations, among other points. The CIPPIC/CIRA intervention also argues that allowing the blocking of pirate sites undermines the balance between users and rights-holders inherent in the Copyright Act. Their brief states that encouraging the dissemination of works is one of the Act’s core objectives. No doubt this is true, but the protection of rights and allowing creators to reap just reward is also a key objective. It is hard to see how encouraging or allowing the dissemination of infringing/unlicensed/stolen content is consistent with the core values of copyright or the overall objectives of the legislation.

Other arguments, not in CIPPIC’s brief, have been advanced by the appellant Teksavvy, including arguments about freedom of expression and net neutrality. No one in their right mind would consider that blocking offshore websites that disseminate pirated, unlicensed content, while simultaneously pushing advertising for dodgy products and often installing malware on the laptops of consumers foolish enough to think that they are getting something “for free”, is a violation of the freedom of expression. Whose expression? The pirates, or the consumers of infringing content? Surely I don’t need to repeat the obvious fact that free speech has its limits. No one is entitled to claim the right of free speech to deliberately cause harm to others (the calling “Fire” in a crowded theatre analogy) and the right of access to content on the internet is accordingly constrained by the law. Child pornography is the most obvious example but there are a number of others. Illegal conduct does not become legal just because it is conducted online. As the Supreme Court of Canada stated in its landmark decision on Google v. Equustek;  

 “jurisprudence has not, to date, accepted that freedom of expression requires the facilitation of unlawful conduct…”

Although Teksavvy claims it is fighting for internet freedom and not to defend piracy (David vs. Goliath and all that), it is pretty clear that this is all about competing with the large ISPs, some of which are themselves large content providers, such as Bell and Rogers. Not surprisingly, the ISP arms of these companies did not oppose the site blocking order, but nor did any of the other ISPs named in the order. If Teksavvy is permitted to continue providing access to pirated content to its subscribers while its major competitors are either constrained from doing so, or willingly agree not to, this gives “David” a competitive advantage when it comes to finding and keeping customers, especially those whose proclivities tend to consumption of content they haven’t paid for.

If Teksavvy’s motives are not that hard to figure out, I find it really difficult to get my mind around why an institution like CIPPIC, that claims it is a “public interest” law clinic, would be so vigorous in advocating against measures clearly designed to assist legitimate, employment-creating, taxpaying businesses against offshore bad guys, content pirates who contribute nothing in terms of social benefits and whom everyone recognizes are not playing by the rules. Where is the “public interest” in that position. Maybe they just don’t like creators and the content industries? 

CIPPIC’s opposition seems to be driven by an ideological bent to oppose reasonable online regulation in the copyright field on the dubious premise that this will constrain the growth of the internet and internet freedom. (This position is remarkably similar to arguments put forth by Google in any forum where there is an attempt to protect rights-holders and put some reasonable controls on behaviour of internet intermediaries.) Just a coincidence, I guess. To pursue its agenda, CIPPIC employs skilful legal practitioners who dive into the nooks and crannies of the law. That’s as it should be of course, since the law has to be clear, and in the end dispense justice–although sometimes the law and justice are not synonymous. In my view, if there is any justice in the current situation, the Federal Court will dismiss Teksavvy’s appeal, but we will have to see what points of law are considered.

But here’s the rub. Content owners are not seeking to impose their content on unwilling consumers. There is a plethora of legitimate content available at just about any price point. They are also not seeking to constrain freedom of expression on the internet. All they are trying to do is stop organized criminal enterprises from undercutting legitimate businesses that contribute to the Canadian economy and support Canadian cultural expression. Their response measures are proportionate and targeted, and come after a series of frustrating experiences in trying to shut down domestic distributors of unlicensed “Kodi” boxes. How is it in the “public interest” to fight this tooth and nail as CIPPIC is doing? What am I missing here?

© Hugh Stephens 2020. All Rights Reserved.