Website blocking proposal good policy

December 8th, 2017 by Barry Sookman Leave a reply »

CANADALAND recently reported (Inside Bell’s Push To End Net Neutrality In Canada) that a coalition of Canadian companies  is considering a proposal to have Canada’s telecommunications and broadcast regulator, the CRTC, establish a regime to block egregious copyright infringing websites.

The proposal is long overdue and, if adopted, would modernize Canada’s laws relating to Internet piracy and bring them into line with those of many of our trading partners. The proposal is not an attack on net neutrality; rather it is an efficient means of stopping content theft. If adopted, the proposal could stop the hemorrhaging that Canadian creators, producers, actors, broadcasters and distributors are suffering due to the scourge of illegal streaming services. The criticisms of the proposal are overblown and contain factually inaccurate statements.

Michael Geist claims he has been given a copy of the proposal to review by CANADALAND. He describes a system in which the CRTC would have the power to issue orders under the Telecommunications Act requiring ISPs to block access to sites that “blatantly, overwhelmingly or structurally” engage in infringing or enabling or facilitating the infringment of copyright.

In a blog post (Bell Leads on Radical Proposal for CRTC-Backed Mandatory Website Blocking System) and in comments made to CANADALAND, Geist labels this a “radical proposal” and “terrible policy”. His criticisms are overblown and inaccurate.

Canada’s copyright policy has long emphasized the need to provide creators and those whose livelihoods depend on copyrights the tools they need to combat Internet piracy sites and services (what the Government called the “wealth destroyers” during the copyright reform process). That is why Canada (over Geist’s protestations) modernized the Copyright Act in 2012 to provide a new right of enablement to permit rights holders to take down Canadian operated pirate sites like isoHunt.

What Canada’s laws don’t have is an express legal and expeditious framework to block foreign “wealth destroying” websites.

Geist asserts the measure is not needed, arguing the “data on piracy is decidedly mixed”. This is the argument he always makes when opposing measures proposed to help artists, creators and others who rely on their investments in creative content to combat its illegal dissemination. Reputable studies repeatedly show that internet piracy hurts.

A recent study by Sandvine revealed that 6.5% of North American households are accessing TV piracy services using TV piracy subscription services. The study estimated that this piracy costs Canadian and US broadcasters and other communication service providers up to five billion dollars a year. It found that almost 95% of TV piracy traffic is driven by purpose-built set-top boxes (STBs) (also known as “fully loaded KODI boxes” “illicit streaming devices” or “illicit IPTV streaming devices”, “ISDs”) that are designed to faithfully recreate the experience of using a set-top box with a traditional cable or satellite television subscription. Another Sandvine study earlier this year revealed that approximately 6% of households use ISDs to access pirated TV content. This threatens the entire ecosystem that depends on the integrity of copyright.

The harm to broadcasters, distribution undertakings and creators of illegal streaming was also highlighted in a recent submission by Shaw to the CRTC.

The rapid growth of the black market for online content, facilitated by streaming piracy, is a concern for the licensed system that the industry, the Commission and Government cannot ignore. Each year, this activity causes significant losses to creators, broadcasters, and BDUs, posing a serious threat to the long-term viability of Canada’s broadcasting system. Streaming piracy must be targeted through a comprehensive and coordinated response. This may include a legislative framework that not only allows rightsholders to seek permanent injunctions against online piracy services, but one that also requires internet service providers (ISPs) to permanently block access to the illegal service at issue.

Our Federal Court recently granted an injunction in Bell Canada v. 1326030 Ontario Inc. (iTVBox.net), 2016 FC 612 against retailers of ISDs making an express finding (that was affirmed by the Federal Court of Appeal) that the sale of these boxes was causing irreparable harm to broadcasters and distribution undertakings.

I find that the Plaintiffs have established that they would suffer irreparable harm if this injunction were not granted. The market for pre-loaded set-top boxes is rapidly and steadily growing, in a way that cannot be precisely quantified at the moment. The continuing sale of pre-loaded set-top boxes will “place devices in the hands of consumers which the plaintiffs, even if successful at trial, will not be able, in most cases, to locate or to effectively restrain” from accessing copyrighted content… Each user who purchases a pre-loaded set-top box has an incentive to permanently cancel his or her subscription to a distribution service such as those offered by the Distribution Plaintiffs. The loss of actual and potential customers constitutes irreparable harm, as recognized in Telewizja Polsat SA v Radiopol Inc, 2005 FC 1179 (CanLII) at para 22.

The threat was also highlighted in the United Kingdom by the Intellectual Property Office in the Annual IP Crime and Enforcement Report: 2016 to 2017 which stated “Online, a trend of illicit streaming devices has been highlighted as another emerging threat from last year and has developed to mainstream products in some parts of the UK, undermining the creative industries involved in bringing Films and TV shows to market.”

The IPO’s Online Copyright Infringement Tracker, Latest wave of research (March 2017) Overview and key findings (July 2017) found that “streaming/ accessing behaviours in particular saw increases” with “Streaming of films increased significantly”. According to the research, approximately 11% of TV programmes consumed online are done so illegally, equating to 14 million programmes.

A proposal to establish website blocking can hardly be considered “radical”. The jurisdiction to make such orders has been available throughout the EU since 2001 and used to block a variety of targets ranging from the Pirate Bay to servers that illegally stream soccer matches. Australia recently established an express regime to permit orders to be made against ISPs to block pirate websites. In France, the anti-piracy agency Hadopi recently released a report calling for faster blocking of pirate sites and adoption of measures to counter illegal streaming platforms and ISDs.

While site blocking orders in the EU can be made by the courts, specialized administrative agencies have also been delegated this authority. Italy’s telecom regulator, AGCOM, has the power. So does Portugal’s Inspecção Geral Das Actividades Culturais. There is an administrative system in South Korea authorizing the government to shut down websites that host unauthorized copyrighted content and an administrative system in Switzerland as well. In Italy a pirate website can be blocked efficiently and effectively in as little as 15 days.

Geist claims the proposal is flawed because it permits blocking orders to be issued “without any court oversight”. However, he acknowledges that orders could only be issued by the CRTC.

Geist fails to explain why he has such a lack of confidence in the CRTC to make orders against egregious pirate sites. The CRTC, as Canada’s telecom and broadcast regulator, regularly makes orders that have major consequences and which involve questions of freedom of expression. It also administers and makes orders under Canada’s Do Not Call and Anti-SPAM (CASL) regimes, regimes Geist consistently defends, which by their nature regulate freedom of expression. Geist also neglects to mention that any CRTC order that is issued is subject to judicial review by the Federal Court of Appeal, so there is in fact ongoing judicial oversight.

Geist claims that website blocking isn’t effective because he isn’t aware “of any study that suggests there’s any significant difference.” Research demonstrates otherwise. A study by Brett Danaher examining the efficacy of a single UK site blocking order found a 90% reduction in visits to those sites, a 22% decrease in total piracy, and a 6-10% increase in visits to legal streaming services. Another order was found to result in a 10% increase in visits to legitimate sites. A study by Incopro of UK site blocks also demonstrated their effectiveness. A study by Incopro of site blocking in Portugal found a 70% reduction in traffic to the piracy sites. Another study showed that site blocking in Australia resulted in an overall usage reduction of over 70%.

UK courts including in the Cartier case have also found the evidence of the effectiveness of site blocking to be persuasive.

Geist argues that site blocking to combat Internet piracy is a “slippery slope”. The next thing we know, he speculates, the CRTC may block sites for other purposes, some of which may violate freedom of expression.

But his slippery slope argument is the classic straw man’s argument. The Supreme Court of Canada recently rejected this argument when it made a global order against Google in the Equustek case requiring it to de-list websites that were selling illegal goods in defiance of several court orders. The Supreme Court said “This is not an order to remove speech that, on its face, engages freedom of expression values…We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.”

The Court of Justice of the European Union (CJEU) has also found these types of orders to be reasonable, proportionate and consistent with freedom of speech values.

Finally, the CANADLAND headline describes the proposal as a “push to end net neutrality.” This is simply wrong. Net neutrality may prevent ISPs from unilaterally interfering with legal online content, but it certainly does not restrict the CRTC from making orders to prevent the dissemination of unlawful content.

Defending the open Internet is an important goal. But, advocating for limits on accessing illegal content online does not violate open Internet principles. Website blocking is a legitimate tool used by many countries that support an open Internet to block a variety of websites that disseminate illegal content such as child pornography, malware, investment fraud, terrorism, and copyright infringement. As a paper by ITIF explained, website blocking can curb digital piracy without violating principles of an open Internet.

Far from being “radical”, the website blocking proposal appears to be a much needed and reasonable proposal. The time is right, as Minister Joly recently stated, to “focus on creators” and ensure “they are fairly compensated, and can protect and make the most of their intellectual property”.

 

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