Last year Canada’s Federal Court approved the first pirate site blocking order in the country.
Following a complaint from major media companies Rogers, Bell and TVA, the Court ordered several major ISPs to block access to the domains and IP-addresses of pirate IPTV service GoldTV.
There was little opposition from Internet providers, except for TekSavvy, which quickly announced that it would appeal the ruling. The blocking injunction threatens the open Internet to advance the interests of a few powerful media conglomerates, the company said.
Soon after, the landmark case also drew the interest of several third parties. This included copyright holder groups, which argued in favor of site blocking, but also the Canadian domain registry (CIRA) and the University of Ottowa’s legal clinic CIPPIC, which both oppose the blocking order.
CIPPIC and CIRA Intervene
Two months ago, the Federal Court allowed these parties to officially intervene but ruled that several of them must pair up to file joint pleadings. This was also the case for CIPPIC and CIRA, which submitted their intervention memorandum this week.
The groups argue that the process through which the blocking order was established in Canada was not correct. CIPPIC, for example, says that it disrupts the carefully constructed enforcement regime of Canada’s Copyright Act, by tipping the scale in favor of copyright holders.
The Copyright Act specifically allows for enforcement actions against search engines and hosting providers, which can be required to remove infringing content. However, the law doesn’t expand these removal requirements to ISPs.
“The absence of any power to control ISP-based dissemination of infringing subject matter at all is, within the scheme of the Act, a users’ right to ISP-based dissemination,” the groups write in their intervention.
The blocking injunction changes this, as it potentially restricts the free flow of information by requiring ISPs to block content.
Telco Regulator Should Have its Say
For its part, CIRA highlights that Canada’s Telecommunications law was disregarded by the court. The domain registry notes that blocking orders are indeed a copyright matter. However, it adds that the far-reaching blocking requirement does require approval from the CRTC, Canada’s telecoms regulator.
The Telecommunications Act states that an Internet provider can’t “control or influence” without the CRTC’s approval, which seems to directly apply in this case.
“Yet the decision appealed suggests that telecommunications law does not constrain the courts’ jurisdiction or discretion to order blocking without CRTC approval nor allow the CRTC to ‘interfere’ with such an order,” the intervention reads.
The intervention further suggests that this case may warrant further scrutiny from the CRTC because the copyright holders (Bell and Rogers) and some of the ISP defendants are owned by the same companies.
Foreign Blocking Schemes are Not Without Restrictions
On top of the Copyright Act and Telecommunications Act concerns, CIPPIC and CIRA stress that pirate site blocking in other countries isn’t without controversy and restrictions. They are part of detailed statutory schemes, which Canada lacks.
In the US, for example, blocking injunctions are an option, but highly restricted. Lawmakers tried to change this several years ago with the SOPA and PIPA bills, but both failed.
“As such, ISP-based blocking in the US is contemplated only under an explicit, narrow provision with limited scope. Because American courts have not generally endorsed blocking orders, copyright owners in the United States are asking legislators for statutory reform,” the intervention reads.
In Australia, the law was updated to specifically allow for blocking injunctions but these measures come with restrictions too. For example, they can only be issued against foreign sites.
Many of these issues have not been considered in Canada. According to the intervening parties, this is not right. Aside from the question of whether this type of enforcement is warranted, more consideration should have been given to the rights of the public, whose freedom of expression is at stake.
“[L]aws protecting freedom of expression and regulating common carriage warrant more than a few comingled sentences. Policymakers, legislators, and judges around the world have carefully considered each issue under the laws of their particular jurisdiction. The same level of scrutiny should apply in Canada,” CIPPIC and CIRA conclude.
A copy of the Memorandum submitted at the Federal Court of CIPPIC and CIRA is available here (pdf).