Protecting content online
When the world wide web – the indexed and easily searchable part of the Internet – came into popular use in the ‘90s, its reach felt limitless. Today, information and entertainment are never more than a few keystrokes away, accessible to us at any place or any time we can connect online.
With this rise in access, has come an increase in users’ expectations. Whether it’s binge watching your favourite series, cheering for the home team, or listening to new music, some feel they are entitled to this content at no cost, and they will seek it through any means even if those means are illegal.
According to ISED’s 2018 report studying the online consumption of copyrighted content, as many as 34% of Canadians surveyed confessed to consuming pirated content online.¹ These negative impacts add up: the annual losses to the broadcasting distribution industry have been assessed at $500 million², and result in direct harm to creative sectors.
The virtual world does such an enviable job of enhancing the physical world, that we forget the rules of the physical world still apply online. Yet, just as in real life, crime, societal ills, and economic harm can be widespread online and should be addressed through law and policy.
Protecting Content in a Digital Economy
Online intermediaries such as Internet service providers (ISPs) or content delivery networks (CDNs) have a part to play in addressing online harms, because of their unique position in the delivery chain. These players should be considered when contemplating any regulation to disable access to the electronic locations or websites hosting offending content. Rogers suggested as much during the 2017 Copyright Act review³, seeking to create reforms that would better allow rightsholders to protect their content in a digital economy, without bearing the significant costs of litigation.
Leveraging ISPs and CDNs to moderate the harms associated with copyright infringement is not new. Past examples have included notifying end users of wrongdoing; requiring that CDNs takedown content; and requiring ISPs to terminate subscribers who partake in illegal activity. Today site-blocking, along clearly defined and established parameters – at one time deemed equivalent to breaking the internet – is beginning to be recognized for its effectiveness.
So what is site-blocking?
Site-blocking describes a routing technique which sees data packets destined to an end user, sent somewhere they cannot be accessed. Practically speaking, where an internet subscriber attempts to access an electronic location such as a domain name or an internet protocol (IP) address, they are prevented from seeing the information associated with these servers. Effectively, the data packets are sent on a detour by the user’s ISP. And because ISPs direct data packets as a function of their business model, as intermediaries they are perfectly placed to create these off ramps for diverting illegal content.
In Canada, attempts to normalize site-blocking as a remedy for copyright infringement began in 2018 with an application by the FairPlay coalition (of which Rogers was a part) to the CRTC, the industry regulator, petitioning the creation of an independent piracy review agency.
The notional goal of this agency was to investigate complaints and make recommendations on whether offending websites should be blocked. Although the CRTC declined to get involved citing jurisdictional limitations (the CRTC deemed piracy to be a copyright rather than a broadcasting or telecommunications issue), the dialogue around site-blocking was advanced significantly.⁴ Whereas it was once considered anathema to suggest that the information superhighway needed “road rules” of this sort, the practicalities of blocking unlawful traffic were now being openly discussed by a wide array of stakeholders.
Only a year later, Rogers, along with Canada’s large broadcasters were successful in obtaining Canada’s first site-blocking order to protect the copyright in their programming.⁵
GoldTV was an illegal piracy service whose operators both stole and rebroadcasted Rogers’ content for profit. Owing in part to the operators’ anonymity, as well as the fact their streaming infrastructure was located overseas, the Court recognized that the most practicable way of shutting them down was to require Canada’s largest ISPs to prevent their users from accessing their servers.
Importantly, the Court also recognized various safeguards within the order as being necessary to prevent overblocking. Overblocking is a very legitimate concern which arises when an innocent third-party site becomes inaccessible as a result of sharing the same infrastructure as the pirates. In this instance, the Court confirmed that any third party impacted by the order could seek to have it varied by the Court (to date, no such variance has been sought).
In May 2021, the Federal Court of Appeal affirmed the validity of site-blocking as a form of relief under Canadian law.⁶
Protecting Live Content
In June 2021, this same group of broadcasters brought a new case to the Court, this time seeking relief for rampant NHL piracy.⁷ This new action seeks to build on the GoldTV order in two important ways: it contemplates both live blocking (blocking which occurs only during live NHL broadcasts) and dynamic blocking (whereby the block list is updated as pirates migrate content to new IP addresses). In other words, dynamic orders are very good at responding to the “whack a mole” problem: they cannot be frustrated by pirate operators who may choose to move unlawful content to new servers, as soon as the existing servers are blocked.
With a rise in online sports piracy, a dynamic blocking order makes sense. If spectators tried to sneak into the Scotiabank arena to watch the Leafs play, they would be promptly ejected. In the online world, a dynamic site-blocking remedy achieves the same result. It is a proportionate and effective response for minimizing the economic harms of piracy, all while respecting the legitimate interests of law abiding online actors.
In May 2022, the Federal Court issued an injunction agreeing to Rogers’ request to protect its live NHL broadcasts by ordering Canada’s largest ISPs to block access to IP addresses distributing stolen hockey content.⁸ This outcome introduces dynamic site-blocking as an important tool in Canada’s anti-piracy arsenal.
Kristina Milbourn is the Director of Copyright and Broadband at Rogers. In 2017 she founded Rogers’ Piracy Lab.
⁴ Telecom Decision 2018-384
⁵ 2019 FC 1432
⁶ 2021 FCA 100
⁷ Written representations of the Plaintiffs
⁸ 2022 FC 775