Late last year, Canada’s Federal Court approved the first piracy blockade in the country.
Following a complaint from three major media companies, Rogers, Bell and TVA, the Court ordered ISPs to block access to domains and IP-addresses of the pirate IPTV service GoldTV.
The blocking injunction is part of a regular copyright infringement case that started a few months earlier. While the targeted IPTV service is relatively small, the ruling set a new precedent.
The timing wasn’t entirely coincidental either. The case against GoldTV was filed after a bid for an administrative pirate site blocking scheme from the same media companies failed.
While the GoldTV case followed the regular legal process, site blocking opponents fear that this is merely a test event and that requests to block many other sites will follow.
Thus far there are no concrete signs of new cases. However, the blocklist created by the GoldTV case has expanded. After the IPTV service switched to new domains to circumvent the order, the copyright holders went back to court, requesting an updated blocklist which was granted not much later.
Although this updated list may have worked for a while, new ‘circumvention’ domains were soon added. This prompted Rogers, Bell and TVA to return to court again a few days ago, requesting another extension.
These update requests were foreseen and are permitted under the injunction. However, there is considerable secrecy surrounding them.
This is in part due to the fact that ISPs have been asked not to publicize the details, TekSavvy explained to us. While the filing is technically public, the rightsholders want to keep the details quiet, presumably because they don’t want to make GoldTV any wiser. This is also what happened with the previous update request.
“We were again asked not to publicize it,” Andy Kaplan-Myrth, TekSavvy’s vice-president of regulatory affairs, tells us. “As much as I do not like being in this position, we have decided not to publicize the list of domains for now.”
TorrentFreak also reached out to other sources, trying to get a copy of the court records, but thus far we have yet to get our hands on the documents. The filings can usually be picked up in person at the court but the coronavirus outbreak is complicating matters.
Although the lack of transparency is frustrating from a news perspective, we don’t expect to see anything unusual in the extension request. According to the Wire Report it contains six new domain names, but we haven’t been able to verify the figure.
TekSavvy, meanwhile, remains the only ISP to appeal the blocking order. While the company is complying with the recent injunction, it hopes to overturn the verdict in this separate proceeding.
This week the ISP submitted its memorandum of fact and law to the Federal Court of Appeal. This filing also references the ‘continual update’ process, noting that the court failed to consider that it would consume judicial resources.
A bigger problem, perhaps, will appear when more blocking injunctions are requested, targeting other pirate sites. These may all require updates during the years to come, TekSavvy warns, which will place a significant burden on the courts.
“Given that the Respondents describe a widespread problem with copyright infringement online, the Federal Court can expect many more such site-blocking motions. For each order, the Court will maintain a supervisory role for the duration of the order. Cumulatively, this will place a significant strain on judicial resources,” TekSavvy cautions.
The ISP’s motion reiterates many of the comments that were made when the appeal was announced, including potential net neutrality problems and a violation of the right to freedom of expression.
“The risks of over-blocking and compromising the integrity of the Internet are real, and are heightened in the absence of legislative guidance. As highlighted by the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, this has serious implications for free expression,” the company adds.
On top of that, TekSavvy questions the effectiveness of the injunction, stressing that there is “strong evidence” that site blocking doesn’t work well as it’s easily circumvented. That alone would be enough to decline a blocking order, the ISP argues.
The appeal process is likely going to take a while, so, for now, the blocking injunction will stand. At the time of writing the federal court has yet to grant the most recent update request. When we learn more about that or the targeted domains, we will report accordingly.
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A copy of TekSavvy’s memorandum of fact and law, filed at the Federal Court of Appeal, is ‘transparently’ made available here (pdf).
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