A few weeks back, a Canadian court issued a shockingly broad blocking order against GoldTV, an IPTV service that copyright holders allege are engaging in piracy by offering streaming access to unauthorized TV streams. The case itself is interesting in that Bell Media and Rogers Media sued GoldTV's owners (listed as John Does) as defendants, but then also had all Canadian broadband ISPs listed as "respondents," including Bell Canada and Rogers Communications -- which almost makes this a case where Bell and Rogers are effectively suing themselves. Wacky.
The plaintiffs in the case demanded that the various ISPs block GoldTV. Not surprisingly, Bell's and Rogers' ISP arms consented to the demand with no protest (as did Fido and Videotron). Most of the other ISPs "took no position" on the matter. I'm not familiar enough with Canadian civil process to fully understand this, but it sounds more or less like they would agree to whatever the court decided, and wouldn't advocate one way or the other. The only ISP to fight back was Teksavvy. The company's lawyers said that the federal court system lacks the jurisdiction to issue a blocking order. The company's argument was that this is a copyright issue, and Canada's revised copyright law has no provision for site blocking. Indeed, such a remedy was proposed but rejected by the Canadian Parliament. Teksavvy also pointed out that issues of site blocking for ISPs was not within the jurisdiction of Canadian courts, but rather the CRTC, the regulatory agency overseeing communications policy (roughly the equivalent of the American FCC). The argument here is that since the CRTC has a net neutrality-like rule that says that content must be treated equally, site blocking would violate that rule.
Indeed, Teksavvy made it clear that even if GoldTV is a bad actor and engaged in widespread infringement, a full site blocking order is a problematic statement for how the internet should work. In a statement given to the website Mobile Syrup Teksavvy explained its position as a principled one in favor of an open internet (and not as a defender of piracy):
“TekSavvy opposed the original motion because a blocking order is a grave violation of network neutrality and a fundamental change to what we do as Internet service providers,” a spokesperson told MobileSyrup in an email.
“As unsympathetic as GoldTV may be, TekSavvy’s view is that it does not represent such an urgent harm to the plaintiffs or to society that stopping its copyright infringing activities would justify such a fundamental change in the nature of the Internet in Canada,” the spokesperson said.
The Court rejects all of that. It says that site blocking orders "have proven effective." It also rejects Teksavvy's position that DNS-level blocking would run into problems when it comes to situations where higher level DNS security systems, like DNSSEC are in place. The court does not care and more or less says "nerd harder."
I accept Teksavvy's evidence to the effect that it currently lacks a system or business process to implement and monitor site blocking; however, that evidence does not establish that the cost and complexity of doing so tips this factor in favour of not issuing the order sought.
Of course, the issue is not really one of the expense of doing the blocking, but due to the fact that it would break other aspects of security. But the court ignores that.
Then there's the big one. Teksavvy, rightly, points out the concern that this site blocking order will overblock, and end up blocking legitimate, non-infringing material. The court completely ignores all that by saying that the site blocking order itself is limited, and if something non-infringing gets blocked, the court can always adjust the order, and also the order lets the ISP temporarily lift the block if it needs to "respond to technical or security concerns or to avoid overblocking." And that's it. No practical understanding or consideration of the problems, just "nerd harder."
Regarding the net neutrality question, again, the court rejects the argument. While the court doesn't go quite as far as the plaintiffs want in declaring that site blocking is never a net neutrality issue (which would be quite a horrifying conclusion), it does note that since this is targeting a site engaged in widespread infringement, that it is not covered by net neutrality rules, since those rules only cover "legal content."
Either way, it's a pretty complete loss for Teksavvy, but the ISP has already made it clear it's appealing the order. As Canadian copyright lawyer Howard Knopf notes in the linked story in the previous sentence, site blocking is a huge issue that, in most other places, has gone through a careful legislative debate. Yet, here, it's the court making up the remedy from scratch, and that should worry everyone:
If website blocking is a needed solution to a serious problem, then one would expect explicit and very carefully constructed legislation based upon extensive review and consultation. Other common law jurisdictions where the courts have blocked websites have enacted enabling legislation that merits study. In Canada, it is clearly the role of Parliament to devise and implement copyright legislation.
The job of our courts is to interpret and apply such legislation – not to effectively amend and extend the law to fill in perceived inadequacies.
Indeed, in the US, when site blocking was proposed in the form of SOPA and PIPA, people protested and Congress chose not to implement it. It would be hugely troubling for a court to then jump in and say "well, site blocking is okay because I said so." And, yet, that's more or less what this Canadian court did here.
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