OTTAWA – Two organizations well-versed in internet issues will argue, if they are granted intervenor status, that an extraordinary Federal Court order forcing internet service providers to block websites hosting allegedly infringing material (stemming from the Gold TV case) is a method that runs afoul of the country’s established copyright laws.
The Canadian Internet Policy and Public Interest Clinic (CIPPIC) and the Canadian Internet Registration Authority (CIRA) have filed applications for leave to intervene this week in an appeal brought forth by TekSavvy late last year against a decision by the Federal Court to order ISPs to block websites hosting allegedly pirated IPTV content under the name Gold TV.
CIPPIC will argue that site blocking is an “intrusive remedy that is incompatible with the right to free expression, the legislative balance between copyright holders’ and users’ rights that sits at the heart of the Copyright Act, and principles of common carriage” in the aforementioned legislation and the Telecommunications Act.
The legal clinic out of the University of Ottawa will also argue that site blocking orders “have a significant potential to disrupt communications networks and interfere with network innovation,” suggests that such orders must not undermine the CRTC’s role “for monitoring net neutrality and ISP interference with transmitted content” and should not be given on an interim basis.
Additionally, “One of CIPPIC’s key positions is that this sort of relief is exceptional and should rarely, if ever, be granted in light of the robust remedial avenues available to a plaintiff under the Copyright Act,” James Plotkin, a lawyer at Ottawa-based Caza Saikaley, who is counsel to CIPPIC on the case, told Cartt.ca.
CIRA, which has coordinated with CIPPIC to ensure that its submission wouldn’t not duplicate issues, plans to argue a similar vein that site-blocking orders should only be given in extraordinary circumstances while minimally impairing the “technical architecture and functions of the internet,” and suggests that section 36 of the Telecommunications Act – which stipulates that ISPs will not influence the content running on their networks – “requires caution” when the court deliberates on such a matter.
In other words, it’s concerned a court-ordered block would be done without the consent of the enforcing body of the legislation, the CRTC.
The Ottawa-based domain manager, which says it is a unique voice on this matter, will also argue that site blocking impacts its ability to steward the .CA domain, and “provide high quality registry, DNS and cybersecurity services.
“A site-blocking order, by its nature, compels ISPs to interfere with internet telecommunications by redirecting their customers’ DNS queries away from a domain name registered under CIRA’s authority,” CIRA said in its submission, which it said could conflict with its “longstanding commitment” to maintaining an open and effective internet infrastructure.
CIRA proposes other remedies to go after alleged infringers: have the identity behind the domain name registrant disclosed so that the defendant can be served in a legal proceeding. CIRA holds this personal information behind domain name registrations and will disclose it if compelled by a court, it said.
It also said that the court could seek to identify and notify operators of servers where the allegedly infringing content is hosted and cooperating with other third parties. While acknowledging that those options are still extreme, CIRA said it is more in-line with the Telecommunications Act than a court-ordered block.
Otherwise, it said the CRTC must get involved in the website blocking order in some way, in order to remain consistent with law.
“The Act provides an impressive suite of remedies, including final injunctions, delivery up and destruction of the infringing content, accounting of profits and common law damages or statutory damages,” Plotkin said. “There are also specific provisions respecting location tools and internet service providers that ought to be considered within the analysis. CIPPIC hopes to have the opportunity to expand on this and other points should the Court grant its motion for leave to intervene.”
In a seminal case involving infringing content on the internet, the Supreme Court of Canada in 2017 dismissed Google’s appeal against a worldwide ban on search results of a company that allegedly infringed on the intellectual property of another. It’s unclear at this point whether a search engine ban could be an alternative remedy to site blocking.
Other intervenor hopefuls, who were approached by Cartt.ca for their submissions but did not provide them, include the British Columbia Civil Liberties Association (BCCLA), Music Publishers Canada and the International and Confederation of Music Publishers, according to the court docket.
