Arrrrrghh you a pirate? It’s all bad news from here.
So over the last month (-ish) there have been two court decisions that have come down hard on pirates, and a movement by The Man to prevent you from ever visiting The Pirate Bay again. Let’s take ’em one at a time.
1. Federal Court of Appeal will have none of TVAddons’ BS
So in the case of “All the big media companies in this country (three different Bells, Rogers, Videotron) vs. some guy named Lackman” (actually called Bell v. Lackman), the Federal Court of Appeal was not buying any of Lackman’s excuses a couple of weeks ago. Here’s the deal.
Lackman runs th website TVAddons. The website offered, uh, add-ons. These add-ons are software programs you download that, uh, add on to other programs and hardware to let you do… some things. So there are these KODI boxes which use the KODI application, an open source software program to stream content from the internet to your TV. So there are these KODI add-ons available from the website that helps you find content, some of which is… not so legal. We call it “copyright infringing content” in the biz. Lackman says, however, that there is plenty of “non-infringing content” that can be downloaded using the add-ons as well. Also, you could easily find all this stuff using The Google. The giant media companies are skeptical, because the best add-ons allow people to get their TV programming for free pretty darn easily.
A lower court agreed with the media co’s, and granted both an interim (temporary) injunction ordering Lackman not to distribute this stuff and to shut down the website, and an “Anton Piller Order” which is a legal thing where some bailiffs show up at your door at 7 AM without warning, and seize stuff to prevent you from destroying it before a trial. The Anton Piller Order also allowed the media co’s lawyers to question Lackman. Oh, they questioned him. But then, another court said “whoa, nelly”, this Anton Piller Order went beyond the goal of “preserving evidence”, and meh, the injunction should not be extended (technically, make the “interim” injunction an “interlocutory” one, but I am too lazy to explain that now). The media co’s appealed that, and here we are.
And the media co’s win! The Court of Appeal had to answer two basic questions – basically did the last judge fuck up when he vacated the Anton Piller Order and did he fuck up when he refused to extend the injunction. Yes and Yes!
For the Anton Piller Order, the Court basically says the Appellants have a pretty darned good case! In legal talk, we would say a “prima facie case”. And Lackman’s arguments about being able to do the same thing with Google is bullshit:
While Google is an indiscriminate search engine that returns results based on relevance, as determined by an algorithm, infringing add-ons target predetermined infringing content in a manner that is user-friendly and reliable.
And these add-ons are helping people infringe copyright:
There is clearly a strong prima facie case that the respondent, by hosting and distributing infringing add-ons, is making the appellants’ programs and stations available to the public by telecommunication in a way that allows users to access them from a place and at a time of their choosing, thereby infringing paragraph 2.4(1.1) and section 27 of the Copyright Act.
Furthermore, that last judge is an idiot (I’m paraphrasing). You see, there is this bit in the Copyright Act which says that if you are “only providing the means of telecommunications” you cannot be held liable for copyright infringement of communicating to the public. We in the biz call it the “innocent intermediary” defense. There is a famous Supreme Court case which I have mentioned before (the Tariff-22 case, with its own Wikipedia entry!) which talks about that bit in the Copyright Act, and it’s pretty clear that this add-ons website is not just providing the means, they are distributing stuff that helps copyright infringement, and providing all sorts of instructions as to how to do it. The Court concludes:
In light of that compelling evidence, one cannot conceive of TVAddons as being a mere conduit that does not engage in acts that relate to the content of the communication
The Court also brings up the previous “set top boxes” case in Canada, MtlFreeTV v. Bell, (which I wrote about here) where the Court said illegal set-top boxes are, uh, illegal. These add-ons are pretty much the same thing. Anyway, for all these reasons, the Anton Piller Order was cool.
As for the injunction business, the Court basically just refers back to everything they just wrote about the Anton Piller Order, and says, sure, the interim injunction should be interlocutory.
OK I guess I should explain this now – “interlocutory” in legal terms means that it is temporary, until the final issue is resolved at trial. Yes, all this was all only step one. Nothing has really been decided. See you back here in a year.
2. Federal Court calls Internet Pirate a Very Bad Boy
Hey, remember that MtlFreeTV case I mentioned a few paragraphs ago? It’s back, baby! On January 24, a judge of the Federal Court was none too happy with one Vincent Wesley, who runs MtlFreeTV , and (spoiler alert) found him in contempt of court. Oooh, contempt of court! Just like on TV! Let’s explore.
The exploration starts with a recap. Back in May 2016, the Federal Court began a case of… wait for it… all the big media companies we were just talking about in the last case, who filed a copyright infringement lawsuit against Wesley / MtlFreeTV for selling illegal set-top boxes. Well, they were illegal because they had software on them that would allow you to access all sorts of copyrighted content. The media companies asked for an injunction ordering him to stop selling the boxes, and the court granted it. Wesley sold more boxes anyway. A court found him in contempt. The court punished him. He then went and sold more boxes! We’re now in January 2017. Somewhere around there, btw, the Federal Court of Appeal upheld the injunction itself, which Wesley was fighting (that’s the case I linked to above). So now with the valid injunction, the court is deciding on whether Wesley is in contempt of it… again. And as already spoiled, the answer is yes.
Basically a Videotron investigator bought a box from Wesley. He had to go to do it in person in some “nondescript building” but still he bought one. He took the box, clicked on a few icons, and voila, copyrighted content. Them’s the facts.
Wesley has a defense though! He says the boxes are not “pre-loaded” with software that allow you to access the illegal content. And the injunction specifically said he could not sell “Pre-loaded Set-top Boxes”. QED! He says the reason they are not “pre-loaded” is that a box user has to go on certain websites to download the programs that will get you the illegal content. And what a user does is his own business! Not mine! The problem is that Wesley also provided instructions as to what to do to get to the websites, and basically all it was was clicking on an icon that appears on the screen when you turn the box on:
As can be seen from the exhibit, there is the mention“click here to finalize MFTMC installation”; the witness“clicked”, which took him to“config MFTMC-9%”, which indicates that the configuration is ongoing. The third photograph documents that“MFTMC has now been successfully installed”. Once installed, it is possible to use MFTMC in order to gain access to content which is alleged to be protected by law.
Well that was easy! Anyway, the court looks at the “beyond reasonable doubt” standard required to show someone in contempt, looks at all the evidence, and concludes:
The set-top box sold by Mr. Wesley had the features required to gain access illegally to content, even if the features required the customer to perform easy steps once prompted by the device sold. It does not suffice to change a device’s feature to escape liability. The intent required is to deliberately do the act that is prohibited, which was proven beyond a reasonable doubt, not to interfere with the administration of justice.
Guilty! The Court asks for submissions about the penalty that should be incurred, but already mentions the big media co’s want a 180 day “warrant of committal” (that’s not prison or anything like that) in order to pay a $150,000 fine. Oooh boy. It’s tough to be a pirate.
3. You will not visit the Pirate Bay and you will not like it
This post has too many words so far. How about a picture?
So this billboard is currently up at Dundas Square, at the corner of Yonge and Dundas in Toronto. That’s a busy corner! Lots of people will see it. So what’s the deal?
On January 29, a group calling itself FairPlay Canada made a submission to the CRTC. Here is the Application (PDF). Don’t read it. OK read it if you want, I won’t stop you. But it’s like 100 pages, so I promise to give you the 411. Maybe in handy and fun Q&A format?
Who or what is FairPlay Canada?
A coalition of more than 25 companies and organizations, including giant ones like Bell, Rogers, and the CBC. They are media producers, media distributors, ISPs, artist groups, cinema chains, and so forth. Basically a bunch of organizations who may be hurt by copyright infringement.
Aren’t some of those organizations like Bell and Rogers both ISPs and content producers / distributors. Is that not a sort of inherent conflict for something like this?
You are very perceptive.
So what do they want?
For the CRTC to establish “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.” That’s my emphasis.
Say what now?
You heard me, a *cough* independent agency to recommend which websites should be blocked. Specifically, websites (and services) which are blatantly, overwhelmingly, or structurally engaged in piracy. It would be called the “Internet Piracy Review Agency”, the IPRA. Catchy!
Is that a good idea?
Probably not! Blocking websites, even for valid reasons like preventing copyright infringement, is a slippery slope that no one should want to go down.
Can you give me a more complete answer as to why this may not be a good idea?
I could, but I’m already getting sleepy. Michael Geist has written an 11-part series on the subject which you can go read instead.
You heard me. This thing may have some issues. And Geist seems like he’s on a mission.
Does anyone think this is a good idea?
You can bet that if Michael Geist thinks something is a bad idea, Barry Sookman thinks that thing is a good idea. Here is Barry’s (actually pretty well-reasoned tbh) argument for the plan, and against Geist. It’s tough for me to trust and respect two incredible legal minds who are always fighting.
Does anyone else oppose it?
OpenMedia, generally fighting the good fight. They have declared today, February 28, a day of action, and encourage Canadians to tell the CRTC to reject the proposal. The CRTC is accepting comments until March 29th.
Stop stalling, what is in the f*ing application???? How will this thing work?
Here are the key bits. The “Commission” is the CRTC:
The IPRA would submit its recommended additions to the list of piracy sites to the Commission for consideration and approval, and the Commission would consider whether or not to follow the recommendation after conducting a review. If the Commission accepted an IPRA recommendation to identify an additional piracy site, it would provide reasons to the site operator and issue a decision varying the list of piracy sites. (…)
The obligation and approval for ISPs to begin disabling access to the sites would only be triggered by the Commission’s decision
Could the website operator complain or object?
Yes! The application makes clear they could apply to the CRTC, or even the Federal Court, as per existing rules. That is true.
So what’s wrong? That seems fair, no?
The thing is, the website would already be blocked by the time the website operator complained to a court. That’s… less fair.
Is this all legal under Canadian law?
Well, almost 60 pages of the almost 100-page application is actually a legal opinion from McCarthy Tétrault that says it is. So, uh, trust them?
Wait, doesn’t Barry Sookman, who you just told me supports the plan, work for McCarthy Tétrault? Isn’t that a bit fishy?
This Q&A is over.