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Why the CRTC should endorse FairPlay’s piracy site-blocking plan

By Barry Sookman      

FairPlay's 'moderate, responsible proposal' on piracy websites should be given due consideration 'based on the facts and not contrived arguments designed to oppose it,' writes Barry Sookman.

Earlier this month, Fairplay Canada filed an application with the Canadian Radio-television and Telecommunications Commission asking for the creation of an independent agency to identify websites and services that are 'blatantly, overwhelmingly, or structurally engaged in piracy.' The CRTC falls under the mandate of Heritage Minister Mélanie Joly.
The Hill Times photograph by Andrew Meade

It’s time to have a fair and reasonable conversation about the issue of online piracy in 2018.

Piracy has evolved significantly since the days of making bootleg copies of movies on VHS tapes. We live in a world where innovation has allowed us to access content from anywhere, anytime, on any screen; and where operators of modern piracy websites have become that much more proficient in finding ways to steal and distribute stolen content online.

Earlier this month, Fairplay Canada filed an application with the Canadian Radio-television and Telecommunications Commission (CRTC), asking for a new tool to help Canadian artists and creators to combat the online theft of their content by illegal piracy websites. It proposed that the Canada’s telecom regulator create an independent agency to identify websites and services that are “blatantly, overwhelmingly, or structurally engaged in piracy.”

The coalition’s 25 representatives from all walks of Canada’s cultural community appropriately described the proposal as “a much needed solution to a large and growing problem that threatens the massive employment, economic, and cultural contributions of Canada’s film, television, and music industries.”

As expected, the proposal immediately came under fire by anti-copyright activist Michael Geist in his column Canada’s SOPA Moment: Why the CRTC Should Reject the Bell Coalition’s Dangerous Internet Blocking Plan.

Geist claims falsely that piracy isn’t a problem in Canada, citing music, because only 33 per cent of Canadians engaged in digital music piracy in 2017 (which is up from 27 per cent in 2016, and is a staggering 53 per cent among 16-24 year olds) and because only 27 per cent of music is stream ripped from sites like YouTube. Even if this represented the only losses due to illegal access, what reasonable person would countenance a one-third market share loss due to theft?

For film and TV, his argument is that piracy has been “made pointless” given unlimited viewing on Netflix. The MUSO TV piracy report filed with the Commission proves otherwise, stating that “Canada is one of the highest consumers of global web streaming piracy”. Netflix itself regards video piracy as one of its biggest competitors, predicting that it will cost over-the-top streaming services like Netflix more than $50 billion between 2016 and 2022.

Geist suggests that site blocking isn’t needed because Canada has “some of the world’s toughest anti-piracy laws”. But as anyone with even the slightest experience in dealing with online piracy knows, domestic anti-piracy laws without an effective blocking regime provide scant to no relief against foreign pirate operators. Court orders are whack-a-mole instruments, unenforceable against them.

Geist says the proposal is “sorely lacking in due process” and judicial oversight. But, it’s hard to imagine a process that is more procedurally fair than the one proposed by FairPlay. The new independent agency contemplated in the proposal would consider claims using criteria established by the CRTC, give due notice to content thieves, review evidence extensively, and permit a hearing if appropriate. The CRTC would review recommendations and decide whether an order should be made.

Further, any decision to issue a blocking order would be made by the CRTC, a quasi-judicial administrative tribunal that already makes orders under the Do Not Call and anti-spam (CASL) regimes, both regimes that Geist staunchly supports, as well as for the broadcast and telecom industries. The CRTC also enforces Canada’s net neutrality laws, all with the same court oversight as the proposed regime.

He claims the proposal is a setback for net neutrality. However, blocking illegal materials on the Internet has nothing to do with this important principle. Net neutrality, as Innovation, Science, and Economic Development Minister Navdeep Bains correctly stated in commenting on the proposal requires that “all legal content must be treated equally by internet service providers.” This is confirmed by the Open Internet Principles adopted (and just revoked) in the U.S., and the European Union net neutrality directive, both of which have exemptions for illegal materials and numerous European nations subject to the directive engage in website blocking.

The proposal is also a pro-privacy one, contrary to his assertion. The proposal does not involve any collection of personal information. In fact, it would protect privacy. Online pirates often collect IP addresses and other personal information about users which they use for nefarious purposes. The proposal would reduce how often this happens to Canadians.

Freedom of expression is also not at risk here, as Geist claims. Canadian courts have repeatedly held that copyright infringers do not engage in freedom of speech when they distribute pirated materials. The Supreme Court of Canada recently confirmed this in the Google v Equustek case. EU courts, which Geist also ignores, have further found blocking orders to be effective, with no evidence of over blocking and consistent with freedom of speech rights.

Geist says the proposal is a slippery slope. However, the slippery slope—and “domestic laws are adequate to stop foreign sites from making illegal content available to Canadians without site blocking”, “freedom of speech”, “net neutrality”, “privacy”, and “judicial oversight”—canards levelled against the FairPlay proposal did not stop Geist from supporting website blocking of foreign child pornography sites without court or administrative tribunal orders.

Geist compares the proposal to the U.S. “controversial legislation known as the Stop Online Piracy Act (SOPA).” He adds the CRTC and the federal government “would be well advised to swiftly dismiss the ill-advised and dangerous Canadian site blocking proposal.”

However, as Geist surely knows, SOPA is totally different from the FairPlay proposal and SOPA’s demise had more to do with inaccurate information spread through social media than its substance. SOPA had no precedent globally, while the proposal is similar to well-established regimes adopted by Canada’s peers like the U.K., France, and Australia. SOPA affected a much wider swath of Internet players, from online advertisers to domain name registrars and others. This proposal is carefully tailored and operates exclusively through Canadian ISPs.

FairPlay has made a moderate, responsible proposal to address a pressing problem. It should be given due consideration based on the facts and not contrived arguments designed to oppose it.

Barry Sookman is a senior partner and member of the Technology Law Group at McCarthy Tétrault and an adjunct professor of intellectual property law at Osgoode Hall Law School. His blog is barrysookman.com.

The Hill Times 

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