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Federal Court orders “dynamic” site blocking order against internet service providers 

July 20, 2022

Consortium of broadcasters sought to block live streams of NHL games in Canada 

The last three years have seen an opening of the floodgates for Federal Court orders directed at internet service providers to block their customers’ access to third party websites, in response to allegations of copyright infringement by the operators of those third party websites. In a significant extension of this precedent, the Federal Court of Canada has issued the first order requiring internet service providers to block IP addresses in real time, upon request by a consortium of Canadian broadcasters to prevent live access to streams of National Hockey League games. 

In Rogers Media Inc. v. John Doe 1, the Court considered an application made by Canadian broadcasters who have the exclusive right to broadcast NHL games to prevent Canadians from accessing pirated streams of those live games. 

The door was opened to website blocking in Canada in the 2019 case of Bell Media Inc. v. GoldTV.Biz. In that case, the Court ordered that ISP block certain IP addresses that were listed in the Court’s order, and the list could only be added to by further court order. The plaintiffs argued that this was not feasible for NHL games and said the court should issue an order for “dynamic” site blocking. From the Court:

[6] In this case, the Plaintiffs have requested a “dynamic” site blocking Order, which involves trying to follow and block the unlawful streaming as it moves. The Plaintiffs say that the type of order issued in GoldTV FC would not work here because the pirates have adopted new measures to avoid detection and defeat site blocking, including moving their infringing content from site to site on a regular basis. Court approval would be impossible prior to each new blocking step because these efforts need to happen in real time in order to be effective.

[7] The Plaintiffs say this is of particular relevance here, because most fans watch hockey games live, rather than recording them to watch later. This combination of factors means that blocking of unlawful streaming of live NHL broadcasts must happen while the broadcast is underway. Based on the evidence they have gathered, and experience in other countries where similar site-blocking orders have been issued, the Plaintiffs say that a dynamic site blocking Order is needed to keep up with the evolution in how online copyright piracy operates. For example, in this case the sites to be blocked could shift during the course of a single hockey broadcast. This type of dynamic blocking order has never been granted in Canada or in the United States. However, similar orders have been granted in the United Kingdom and Ireland, as well as in some European countries.

Some of the ISPs were prepared to consent to the order, while others resisted it on various grounds summarized by the Court at paragraph 8 of the decision: 

Although the objecting Third Party Respondents do not adopt identical positions, they advance broadly similar arguments. They say the process the Plaintiffs followed has been inappropriate and unfair. They contend that the Plaintiffs have failed to prove their case. They argue that the Order sought would impose undue risks, practical difficulties and costs on them, noting that they are not accused of any wrongdoing in this matter. Finally, they submit that if any Order is to be imposed, the Plaintiffs must be required to indemnify them completely for the costs associated with compliance, including (for those that would be required to do so) any cost of upgrading their network infrastructure.

The Court followed the reasoning from the GoldTV cases, which included the general test for injunctive relief against uninvolved third parties from RJR-MacDonald Inc. v. Canada (Attorney General) most recently interpreted by the Supreme Court of Canada in Google Inc. v. Equustek Solutions Inc. In this case, as in GoldTV, this analysis was supplemented with additional factors drawn from the England and Wales Court of Appeal case of Cartier International AG v British Sky Broadcasting Ltd.:

[113] The following summary of the Cartier factors borrows from GoldTV FC at paragraph 52 and GoldTV FCA at para 74. The factors to be considered are:

A. Necessity – the extent to which the relief is necessary to protect the plaintiff’s rights. The relief need not be indispensable but the court may consider whether alternative and less onerous measures are available;

B. Effectiveness – whether the relief sought will make infringing activities more difficult to achieve and discourage Internet users from accessing the infringing service;

C. Dissuasiveness – whether others not currently accessing the infringing service will be dissuaded from doing so;

D. Complexity and Cost – the complexity and cost of implementing the relief sought;

E. Barriers to legitimate use or trade – whether the relief will create barriers to legitimate use by unduly affecting the ability of users of ISP services to access information lawfully;

F. Fairness – whether the relief strikes a fair balance between fundamental rights of the parties, the third parties and the general public;

G. Substitution – the extent to which blocked websites may be replaced or substituted and whether a blocked website may be substituted for another infringing website; and

H. Safeguards – whether the relief sought includes measures that safeguard against abuse.

The Court ultimately was satisfied that the RJR-MacDonald and Cartier factors supported granting the injunction, which was issued on the following terms:

  • The plaintiffs must collectively appoint a third party agent identify impugned IP addresses, to notify the ISPs of IP addresses to be blocked and when to unblock them, compile complaints and address the effectiveness of the measures. The third party agent is to report to the Court and issue a public report. 

  • ISPs must block or attempt to block access to IP addresses streaming infringing content as identified by the plaintiffs’ agent, and informing the plaintiffs of processes they would propose to use. 

  • Disabling access is to be done “as soon as practical,” and within 30 minutes of the beginning of the game or notice and the IP addresses will be unblocked at the conclusion of the game. 

  • The plaintiffs and ISPs must provide a form of notice to affected customers.

  • Compliance with the order generally is immediately, if possible, but an ISP that cannot implement measures to comply within 15 days must notify the plaintiffs. 

  • The plaintiffs are responsible, to a maximum of $50,000 per ISP, for the costs of implementing the order.

  • The order will only be in effect until the end of the 2021–2022 NHL season (including playoffs). 

While GoldTV did open the floodgates for rightsholders to seek blocking orders, the “dynamic” blocking was largely ordered because of nature of sports broadcasting, where viewers tend to watch games live. The door has clearly been opened for similar orders to be sought for other live sporting events, such as the Soccer World Cup and Olympics. 

 

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