Late last month, the Federal Court of Canada handed a win to Bell, Rogers and Quebecor by allowing them to force the country’s biggest internet providers and a few smaller ones including TekSavvy to block unlicensed streams of NHL playoff games.
The playoffs concluded this past weekend and the order is now technically over, but the precedent of blocking websites for commercial reasons in Canada has been established – and is likely to expand and worsen.
As with the similar, previous case of Gold TV – where the court in 2019 ordered ISPs to block websites that hosted software that enabled unlicensed streaming – TekSavvy is opposed to this effort on the grounds that Parliament should set such policies, not courts, so that the public’s views can be considered. Unfortunately, in both cases, the court found in favour of the media companies and opened the door to further copyright policy setting without informed public debate.
Last year, we chatted with Andy Kaplan-Myrth, TekSavvy’s vice-president of regulatory and carrier affairs, about what the Gold TV ruling meant for copyright balance and enforcement in Canada. He’s back again to discuss where this new site-blocking development will take us.
What exactly did Bell, Rogers and Quebecor get with this order?
Andy Kaplan-Myrth: They applied for it before the NHL season started and wanted to get it in place very quickly so that it would have been in effect the entire season, but there was pushback from other ISPs. The order didn’t come through until the very last games in the post-season.
The order applied to all the big ISPs – Bell, Rogers, Shaw, Videotron, Telus, Cogeco and Eastlink – plus TekSavvy and Distributel, or the same ones as the Gold TV order.
It’s similar to Gold TV in that it requires us to block our customers’ access to certain internet addresses. But with Gold TV, it was domain names so we took those out of our domain name server. In this case, it’s IP addresses, but it isn’t limited to a short list. We received a feed of IP addresses that the plaintiffs said were associated with illegal streaming and we were required to block our customers’ access to those during certain windows.
How did the temporary nature of the order work?
AKM: We only blocked during the windows that were defined, which was around specific games. After that, it returned to normal, and people could access whatever else was going on at those addresses.
In that sense, it was fairly targeted and limited. But if it had applied during the main season, we would have had to block for longer period of times because you had multiple games across multiple time zones.
Why is this order a problem?
AKM: The court has identified ISPs as being in a position to be gatekeepers, so the responsibility has fallen to us to block access. The precedent is that a copyright owner can get an injunction requiring any ISP they want to block any IP address associated with violating their copyright.
The issue is the practical implementation of a small number of ISPs juggling a potentially unlimited number of orders and effectively filtering the internet to protect different intellectual property and a wide variety of copyright owners.
It seems obvious that Bell, Rogers and Quebecor will leverage this to protect more media properties. Why not give us IP addresses associated with CTV, which would be 24 hours a day, or news content or other sports? Obviously, this is going to turn into a much bigger requirement that will become more difficult to do.
They’re giving us a new role of filtering the internet and that’s just not what we do, it’s not our role.
Is there a better way to move against unlicensed content?
AKM: They could have gone after other chokepoints, like the transport or backbone providers who are responsible for connecting ISPs’ networks themselves to the larger internet, but they didn’t for whatever reason.
The court is also making a policy decision that is better left to Parliament. Copyright law has always been about balancing interests. Yes, it’s true that copyright owners are entitled to certain monopoly rights that the Copyright Act gives them, but there have always been larger countervailing concerns, like what rights do people have when it comes to content and using the intenet?
Parliament has always considered how far do we want to go to enforce those rights and at the same time risk infringing on user rights or experience? That discussion is not happening here.
How effective is the blocking likely to be?
AKM: We blocked requests to those IP addresses supplied, but my understanding is that they could be circumvented with VPNs, similar to Gold TV. The court was told that but decided this has been effective enough. It doesn’t have to block every case of infringement, but it makes it more difficult for users so it will stop some of it.
There is a function built into the order where an independent third-party expert will study the effectiveness of these measures. They’re supposed to produce a report to the court about the efficacy.
Is this third party truly independent?
AKM: The court was involved in deciding who the experts would be. Both sides made submissions and the court took those into consideration, so it’s somewhat balanced and independent. It’s also a separate party from the one that provides the IP addresses.
Are there transparency issues with this order?
AKM: Here you have a court order that applies to the internet that is to some extent about public policy and yet parts of how it works are confidential. Specifically, there’s at least a claim that the list of IP addresses is confidential under the order.
With the Gold TV order, the list of blocked domain names was public. This is a larger order where the court doesn’t have as much oversight. The plaintiffs claim this information is confidential, so it’s not as public as it should be.
That’s of concern. It puts affected ISPs in the position of not being able to talk about parts of it. We like to be as transparent as possible with our customers.
How much does this violate net neutrality?
AKM: It’s clearly a violation to some degree of the notion that internet providers should not unduly interfere with the traffic going across their networks. The pure basic role of the ISP is to carry the bits and here we’re being told to limit them. We’re not carrying the full internet anymore. Other ISPs who aren’t touched by this order are also still carrying everything.
I agree that there is some illegal content we’d be less concerned about blocking. But if I were to put a list together of content that society had an interest in blocking that would have less of an impact on net neutrality, I would not be starting with hockey games and copyright protection. Surely there is content that is more harmful to society.
The fact that we’re starting with economic interests and sports games just reflects our society’s values.