Two years ago, Canada’s Federal Court of Appeal upheld the first pirate site-blocking order in the country.
The landmark decision opened the door to additional and more advanced blocking requests. Indeed, it didn’t take long before NHL broadcasters asked the court for a pirate IPTV blocking order of their own.
The Federal Court eventually granted this request for the ongoing season, with some safeguards. In part due to intervention from the Canadian Internet Policy and Public Interest Clinic (CIPPIC), an independent expert was appointed to measure the effectiveness and proportionality of the blocking efforts.
The blocking injunction wasn’t filed in isolation. Instead, the interlocutory order is part of a lawsuit against the operators of the IPTV streaming servers. The goal of the lawsuit is to pursue claims against these defendants and the blockades are a temporary measure to limit the damage these services cause.
NHL Blocking Season Ends
The initial NHL injunction only applied to the 2021/2022 season, which was already in its final stages when the injunction was issued. After that, the media companies, which include Rogers, Bell, and The Sports Network, used the lawsuit to obtain a similar blocking order for the NHL’s 2022/2023 season.
Despite these successes on the blocking front, there was no clear progress in the underlying lawsuit. Publicly shared information is limited but court records show that the plaintiffs decided to discontinue their legal action earlier this month.
The decision doesn’t impact the blocking injunction, as that was already moot after the NHL season ended. However, by dropping the case in its entirety, it’s clear that the rightsholders no longer intend to go after the people who operate the pirate streaming operations either.
This begs the question; was this lawsuit indeed started to bring the operators to justice, or was the main priority to get a blocking injunction in place?
To find out more, TorrentFreak reached out to several rightsholders. Rogers Media was the only company that acknowledged our request for comment, but the company stopped responding after that.
Legal Concerns and Lacking Transparency
The Internet Policy and Public Interest Clinic remains skeptical. CIPPIC’s Interim Director and General Counsel, David Fewer, remains critical of the legal process surrounding these blocking injunctions.
“We are concerned with how blocking orders are being used. We’ve always had difficulties with offering this kind of remedy to copyright holders through the interlocutory judicial process,” Fewer informs TorrentFreak.
CIPPIC can’t comment on the motivations of the rightsholders but based on the information available it wouldn’t be a surprise if the blocking injunction was the main aim of the litigation.
Whatever the case, Fewer would like to see more transparency. At the moment, most of the legal processes take place behind closed doors, without public scrutiny.
“Quite apart from the failure to pursue the alleged infringers is the complete lack of transparency around the technology used. This includes both its benefits and its burdens. Canadians are being deprived of the facts necessary to ground good reality-based policy discussion,” Fewer says.
Through a backchannel, TorrentFreak managed to obtain some further information about the blocking efforts. While hard to measure, the rightsholders and several ISPs believe that these restrictive measures were successful.
According to Rogers Media, the blocking actions were effective from a commercial standpoint, as they coincided with an uptick in legitimate viewers.
“For the 18-34 age group, viewership on Rogers Media’s Sportsnet channels increased by 13% for ‘National Games’ and 9% for games between two US teams and for ‘Regional Games’,” Greg Sansone, Rogers Media’s Senior Vice-President of Sportsnet, commented in an affidavit.
Sarah Farrugia, Vice President, Business Intelligence and Retention at Bell Canada, shared some similar findings. The company tracked the IP addresses that tried to access the pirated streams and found that several of these customers signed up for paid packages afterward.
The exact number of new signups is redacted from court records and it’s not known what percentage of non-blocked customers signed up for new subscriptions as well. According to Bell, however, the data suggest that the blocking efforts work.
In addition to tracking customers’ activities, Bell also kept an eye on VPN usage. Some predicted that the blocking measures would boost VPN use but Bell didn’t find any evidence for this.
The main question now is what Bell, Rogers, and other rightsholders will do next. If the blocking efforts were indeed successful, it seems likely that they may want to file a new lawsuit, perhaps against other pirate streaming services, to continue these efforts.
How the court will view a potential follow-up is an interesting question. The Federal court previously stated that blocking injunctions are temporary measures and that rightsholders are expected to go after the actual infringers.
It’s also possible that copyright holders will focus on other targets for now, including pirate streaming sites. Earlier this year, a lawsuit was filed against Soap2Day. This could have been a precursor to a new blocking injunction, but the site threw in the towel before rightsholders could make that move.