By Ahmad Hathout
OTTAWA – Internet service provider TekSavvy said in court documents filed on Friday that the big broadcasters which were successful in bringing about the first court-ordered site-blocking decision did not put the effort in to use other methods to squash those it accused of peddling unlicensed content on the internet – making it harder to justify the use of site-blocking for that purpose.
In July, Bell, Rogers and Quebecor’s Groupe TVA Inc. brought a motion to ban alleged pirate IPTV provider GoldTV from operating until the outcome of a trial, which was granted by the court in August. Before that, however, and after a temporary 14-day ban on GoldTV in late July, the telecoms brought another motion, this time requesting the court order ISPs to block the websites the alleged infringer was operating. The site-blocking motion was eventually granted in November.
TekSavvy, which appealed the November order, said in newly filed court documents on Friday it’s inexplicable the telecoms preempted the longer interlocutory ban on GoldTV by applying for a site-blocking order, and shows the vertically integrated companies sought to use GoldTV to achieve that unprecedented ultimate goal. This is despite the broadcasters claiming GoldTV did not respect the interim order.
“The Respondents led little evidence of any efforts to either locate the GoldTV defendants or to enforce the injunction against them,” TekSavvy said in the documents.
The November order came after multiple failed attempts to get other bodies to grant them a similar regime that would force ISPs to block websites that allegedly infringed on content, as the three plaintiffs are content owners.
TekSavvy said it was also inexplicable and curious that the telecoms didn’t pipe up about GoldTV in 2017, when the alleged infringer began operating. The broadcasters even note the suspect IPTV provider had been operating since early 2017. That same year, Bell presented the idea of having a site-blocking regime under the auspices of the CRTC to a House of Commons committee studying the North American Free Trade Agreement (NAFTA).
Chatham-based third party internet provider TekSavvy suggests the big broadcasters only really put its crosshairs on GoldTV after its unsuccessful attempts to push for a site-blocking body through Parliament and the CRTC. Those broadcasters were involved in forming an organization, known as FairPlay Canada, which applied to the CRTC for a site-blocking apparatus, but was denied because the regulator said it was outside its jurisdiction to rule on the matter.
Later, the big players pushed the House of Commons industry committee in late 2018 to amend the Copyright Act to include a site-blocking provision. The committee’s report, released in June 2019, did not recommend the government implement a site-blocking regime. Only after that report’s release, in July 2019, did the big broadcasters bring their court motion to stop GoldTV from operating.
All of this led to a faulty judgment by the federal court, TekSavvy further argues. The company notes in its official arguments that there is no site-blocking remedy available in the Copyright Act, it interferes with the protected notion of net neutrality, and that the court incorrectly relied on the case of Equustek to make such a determination.
In the 2017 Equustek case, the Supreme Court of Canada upheld against Google a worldwide search engine ban on look-ups for a website that was allegedly infringing on the intellectual property of a Canadian company. TekSavvy argues that Equustek and this case are different in that Google has control over how it lists sites and does not need regulatory approval – as site-blocking does through the Telecommunications Act, which prohibits the control of content over the web without CRTC approval; and in Equustek, Google would only be minimizing the ability for people to find the allegedly infringing sites, not removing them altogether as site-blocking would.
TekSavvy also uses the Equustek case to show that the plaintiff went through great pains to locate the defendants overseas but were unable to do so. Equustek also obtained injunctions against the defendants three years leading up to the index decision, which in TekSavvy’s argument further shows the relatively miniscule effort the broadcasters in GoldTV went through.
“By contrast, in this case, the Respondents did not adduce any evidence of meaningful efforts to identify, locate and engage directly with the GoldTV defendants in the mere two weeks between commencing the copyright proceeding and requesting the site-blocking Order,” TekSavvy said.
Like prospective intervenors the Canadian Internet Policy and Public Interest Clinic (CIPPIC), the Canadian Internet Registration Authority (CIRA) and the British Columbia Civil Liberties Association (BCCLA), TekSavvy is arguing that the federal court failed to take into consideration freedom of expression issues, which would open the discussion up to concerns about blocking legitimate content.
TekSavvy said, at the end, the broadcasters had other remedies to pursue the defendants, which aligns with the aforementioned intervenors’ arguments that site-blocking should only be used in the most exceptional circumstances. CIPPIC counsel James Plotkin told Cartt.ca last month that the plaintiffs have a suite of remedies under the Copyright Act that would be more suitable than site-blocking, including the destruction of the infringing content and damages. He said CIPPIC will be elaborating on those remedies if its application for leave to intervene is approved.
“There are many steps they can take to locate the GoldTV defendants and enforce the interlocutory injunction already in place,” TekSavvy said. “Further, they can advance their copyright action against the GoldTV defendants in Federal Court, and obtain a final judgment with all the remedies that come with it. Finally, they can continue participating in the parliamentary process to have a site-blocking remedy added to the Copyright Act.”
