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Barry B. Sookman

Telephone: 416-601-7949

Fax: 416-868-0673

Email: bsookman@mccarthy.ca

IdeaBlast: FairPlay &Internet Piracy

February 2, 2018

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FairPlay Canada Proposal

“To combat the piracy problem, the CRTC should

create an independent agency to identify websites

and services that are blatantly, overwhelmingly,

or structurally engaged in piracy.

Following due process and subject

to judicial oversight, ISPs would

ultimately be required to disable

access to the identified piracy

sites and services.” CRTC Application

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FairPlay Canada Partners

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¬ “Piracy is a large and growing problem that

threatens the massive employment,

economic, and cultural contributions of

Canada’s film, television, and music industries.”

¬ “The Internet has had a profoundly positive

impact on Canadian society and individual

Canadians but it also has exacerbated the

piracy problem, making it easy for pirate

operators to make their pirate sites available in

Canadian homes.” CRTC Application

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KODI – Select Live Canadian TV Channels

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KODI – On-Demand Library

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IFPI, Connecting with Music, Consumer Report,

September 2017

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Michael Geist Why the CRTC should reject FairPlay’s dangerous

website-blocking plan, Globe and Mail, February 1, 2018

❖“a set-back for privacy, freedom of expression, and net neutrality”

❖“The absence of full judicial oversight and the likely Charter challenge

are fatal flaws in the proposal”

❖“a disproportionate, unconstitutional proposal sorely lacking in due

process that is inconsistent with the current communications law

framework”.

❖“over-blocking of lawful content”

❖“it will quickly expand beyond sites that "blatantly, overwhelmingly or

structurally" engage in infringing or enabling or facilitating the infringing of

copyright”

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The application “presents a Canadian solution to a

global problem causing direct and measurable harm in

Canada, that is carefully

tailored to the current Canadian

legal and regulatory environment

but based on an internationally

recognized and widely-adopted

approach.”

¬ Foreign experience, effectiveness, no over-blocking

¬ Telecommunications Act, ss.24,24,1, 36; IPRA,

judicial oversight

¬ Focus: blatantly, overwhelmingly, or structurally

engaged in piracy

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¬ Net neutrality principles do not prevent

blocking illegal content.1,2,3

¬ Blocking where required by law for:

¬ child pornography

¬ terrorist grooming

¬ spam

¬ malware, viruses

¬ network threats

¬ comply with court orders

¬ copyright piracy?

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¬ Minister Navdeep Bains:

¬ “Our government supports an open internet

where Canadians have the ability to access the

content of their choice in accordance to

Canadian laws,” said Bains, in an emailed

statement to MobileSyrup. “In other words, our

Government believes that all legal content

must be treated equally by internet service

providers (ISPs). That’s why our government

has a strong net neutrality framework in place

through the Canadian Radio-television and

Telecommunications Commission (CRTC).”

(emphasis added)11

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¬ There is no all-encompassing Commission

decision or regulatory framework on net

neutrality.4

¬ Protecting customers from receiving illicit

materials is a necessary part of an ISP’s

network operations.6

¬ CRTC has stated on multiple occasions that

blocking content is permissible, but takes the

view that its permission is required.5,6,7

¬ Permission to block legal content for traffic

management purposes would be limited.6

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¬ What freedom of speech rights?

¬ Whose freedom of expression rights are

violated? 8,9,10

¬ Do pirates have Charter rights?10

¬ Foreign jurisprudence on site blocking and

freedom of expression?11

¬ Do pirate infringers have greater rights

online?

¬ Slippery slopes?

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1. FCC, Final Rule Preserving The Open Internet (December 2010) Open Internet

Principles “To provide greater clarity and certainty regarding the continued freedom

and openness of the Internet, we adopt three basic rules that are grounded in broadly

accepted Internet norms, as well as our own prior decisions’’…ii. No blocking. Fixed

broadband providers may not block lawful content, applications, services, or non-

harmful devices; mobile broadband providers may not block lawful websites, or block

applications that compete with their voice or video telephony services”. “…open

Internet rules protect only lawful content, and are not intended to inhibit efforts by

broadband providers to address unlawful transfers of content.” “To make clear that

open Internet protections can and must coexist with these other legal frameworks, we

adopt the following…Nothing in this part prohibits reasonable efforts by a provider of

broadband Internet access service to address copyright infringement or other unlawful

activity”.

2. EU Regulation 2015/2120, 25 November 2015 re open Internet access “Article 3

“Safeguarding of open internet access”: Para. 1 “This paragraph is without prejudice

to Union law, or national law that complies with Union law, related to the lawfulness of

the content, applications or services.” ““Providers of internet access services shall not

engage in traffic management measures except as necessary… in order to: comply

with Union legislative acts, or national legislation that complies with Union law, to

which the provider of internet access services is subject, or with measures that

comply with Union law giving effect to such Union legislative acts or national

legislation, including with orders by courts or public authorities vested with relevant

powers”.

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3. Mark Goldberg “Blatantly, overwhelmingly, or structurally engaged in piracy”, Telecom Trends “When

a draft of the FairPlay Canada application leaked in December, some erroneously described the plan

as an attack on net neutrality, perhaps hoping to capitalize on the publicity associated with the FCC’s

Restoring Internet Freedom declaratory ruling.” “So it is pretty clear: the FairPlay Canada proposal

has nothing to do with net neutrality. There is nothing in the proposal that will “kill the internet.” There

is no slippery slope. There is no attack on charter rights of expression.” Also, Mark Hayes et al “Net

neutrality: Ensuring free flow of information while protecting ISP networks” The Lawyer’s Daily, “ISPs

may be required to control content on their network for legal reasons. For example, ISPs will be

required to abide by court orders, which may require ISPs to block access to certain websites. A

simplistic mantra of protecting net neutrality should not be permitted to allow the dissemination of

websites which infringe intellectual property rights or other rights.”

4. Telecom Regulatory Policy CRTC 2017-104, Framework for assessing the differential pricing

practices of Internet service providers.” “[T]here is no all-encompassing Commission decision or

regulatory framework on the broad issue of net neutrality”. “The general concept of net neutrality is

that all traffic on the Internet should be given equal treatment by ISPs. In other words, there should be

no manipulation, preference, or discrimination, either through technical or economic means.”

5. Telecom Decision CRTC 2016-479, Public Interest Advocacy Centre – Application for relief regarding

section 12 of the Quebec Budget Act ““The Commission expressed the preliminary view that the Act

prohibits the blocking by Canadian carriers of access by end-users to specific websites on the Internet

without prior Commission approval, whether or not such blocking was the result of an Internet traffic

management practice. Such blocking would only be approved where it would further the

telecommunications policy objectives set out in section 7 of the Act. Accordingly, compliance with

other legal or juridical requirements—whether municipal, provincial, or foreign—would not, in and of

itself, justify the blocking of specific websites by Canadian carriers, in the absence of Commission

approval under the Act.”

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6. Telecom Regulatory Policy CRTC 2009-657, Review of the Internet traffic

management practices of Internet service providers ““Blocking as part of ITMP

requires CRTC approval under s.36. “Canadian ISPs have used certain ITMPs for

the purposes of network security and integrity…these ITMPs have been

employed to protect users from network threats such as malicious software,

spam, and distribution of illicit materials… such activities are unlikely to trigger

complaints or concerns under the Act and are a necessary part of an ISP’s

network operations.” (emphasis added) Blocking for the purpose of network

security or network integrity not covered by the policy.

7. Compliance and Enforcement and Telecom Regulatory Policy CRTC 2016-4427,

Empowering Canadians to protect themselves from unwanted unsolicited and

illegitimate telecommunications “Contrary to the submissions by some parties,

carriers are not precluded under the Act from offering universal call blocking or

opt-in filtering services when implemented in a manner consistent with the

Commission’s determinations herein. Commission approval is, however, required

pursuant to section 36 of the Act prior to offering some of these services.” “The

Commission intends to approve universal blocking, under section 36 of the Act,

for the purposes of preventing nuisance calls that contain blatantly illegitimate

caller ID from reaching Canadians.”

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8. Compagnie Générale des Établissements Michelin--Michelin & Cie v. National

Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-

Canada). [1997] 2 F.C. 306 (T.D.) ““The Charter does not confer the right to use private

property - the Plaintiff's copyright - in the service of freedom of expression.”

9. Canada v. James Lorimer & Co, [1984] 1 F.C. 1065 (C.A.) ““So little of its own thought,

belief, opinion and expression is contained in the respondent's infringing work that it is

properly to be regarded as entirely an appropriation of the thought, belief, opinion and

expression of the author of the infringed work.”

10. Google Inc. v. Equustek Solutions Inc., 2017 SCC 24 ““We have not, to date, accepted

that freedom of expression requires the facilitation of the unlawful sale of goods.”

11. Cartier International AG & Ors v British Sky Broadcasting Ltd & Ors [2014] EWHC

3354 (Ch) (17 October 2014) ““As for the freedom of internet users to receive

information, this plainly does not extend to a right to engage in trade mark

infringement, particularly where it involves counterfeit goods. Since the Target

Websites appear to be exclusively engaged in infringing commercial activity, with no

lawful component to their businesses, the operators have no right which requires

protection. Thus the key consideration so far as this freedom is concerned is the

impact of the orders on users of other, lawful websites. If the orders are properly

targeted, and have sufficient safeguards built into them, then that should mean that

such users are not affected.”

12. “ISED minister responds to anti-piracy group, defends net neutrality” Mobilesyrup,

January 29, 2018 https://mobilesyrup.com/2018/01/29/ised-minister-responds-anti-

piracy-group-defends-net-neutrality/.

/ mmmm yyyy / # 123456

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