Site Blocking for Fun and Profit

In which we begin to try to catch up on [/checks date] 9 months of internet law developments. How does this writing thing work again?

Well well well. Look who’s back! I don’t know what made me lose my love of snarky internet law blogging, but those days are over. I swear to you on Bobby Hull’s grave that I will blog in 2023! No less than one post per calendar month. [/checks date again] Yikes that’s cutting it close.

I should point out that in those missing nine months, I actually had this site’s look redesigned and modernised. Looks gorgeous, no? Big thanks to my good friend Geoff who designed my site way back when (12 years ago or something, I am too lazy too look it up) and really made it pop in this v2.0. I had thought that a new site look would push me to blog again, but I really underestimated my own laziness. No more! Let’s do this.

To find my love of writing again, today I return to the subject matter of my first blogging love, hockey. Yes, yes, this is an internet law blog. But I have found where hockey and internet law meet. This should be fun! Well, except for people who like watching illegal streams of live hockey.

The Case

The case is Rogers Media Inc. v. John Doe 1. But that barely begins to cover the parties involved in this one. If you look at the first decision in the case, you’ll see that Plaintiffs are all the rights holders in Canada for hockey on TV – your Bells, your Rogerses, your TSN’s, RDSes, etc. Your Defendants are a couple of John Does and “other unidentified persons who operate unauthorized streaming servers providing access to NHL live games in Canada.” Your Third-Party Respondents are ISPs, and many of the same companies as your Plaintiffs. Fun! But those companies both own rights and provide internet access to people. Confusing I know. Well maybe not so confusing given media consolidation in this country. As usual, CIPPIC was an intervenor, fighting for the people, arguing that site-blocking is fucked up.

So the Plaintiffs own the rights to broadcast hockey games, and the Defendants are obviously stealing those rights by rebroadcasting NHL games over the internet as the old expression goes “without the express written consent of Major League Baseball”. The Plaintiffs are not happy! But what can they do?

The Issue

As presented in that first decision (linked above) from May of 2022, the problem is that the rights holders cannot really find those Defendants. They are unnamed for a reason! The Court states that “Plaintiffs say they cannot realistically enforce their copyright by cutting off the source of the unlawfully distributed copyright material.” So they have a novel (well not so novel) idea:

Plaintiffs seek to stop people in Canada from accessing the infringing content. In order to do that, they request a “site blocking” Order against the named Third Party Respondents, who control the vast majority of access to the Internet in Canada. The purpose of the Order they seek is to stop Canadian customers from viewing the copyright-infringing broadcasts of live NHL games.

The Court says we need to decide if this should be allowed, and how we can “balance the interests” of all the parties involved. You know, like the Third-Party Respondents who are the same companies as the Plaintiffs.

We have precedent!

The Court notes that site-blocking orders were already granted in the GoldTV case. I actually wrote about case that back when I blogged like a blogger (though I never wrote about the failed appeal). In that case though, the websites to be blocked were at specific, fixed IP addresses which could be easily found and blocked. The Court ordered a specific number of sites blocked, and more could only be added by a Court Order. It is described as a “static” blocking order.

The problem here in this new case is that the illegal streamers jump all over the place to and from various IP addresses. We don’t even know where they are until they pop up on game night! As the Court notes:

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.

So the Plaintiffs are now asking for a “dynamic” site-blocking order, where the ISPs must block the infringing websites wherever they may be! As the Court says, “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.” Will the Court grant it?

The Court Grants the Order!

There was a spoiler further up so obviously duh. The May decision is hella long (like over 300 paragraphs) so I am not going to summarize all of it. Especially because I am actually here to write about a new decision from November. But let’s take a quick look at each of the 3 issues the Court says need to be answered:

1. Should the interlocutory injunction be refused because the process was unfair to the Third Party Respondents?

No! There is a long discussion about whether the timing of all this was kosher. Some of the ISPs (not the ones that also own rights) argued that the Plaintiffs were being tricky, and had alternatives to asking for this order. Most importantly, they argue that while this is listed as an “interlocutory” order (i.e. temporary in the middle of a case) in effect it will be permanent as the rights holders will get what they really want and give up trying to find and sue the Defendants. The Court says that sure, the rights holders could have done different things, but what they did was not “unfair”, whatever that means.

2. Have the Plaintiffs met the test to obtain a mandatory interlocutory injunction for a dynamic site-blocking order?

Yes! There is a ton of legal mumbo jumbo you don’t need to hear about. TL;DR – there are several factors to determine whether an interlocutory injunction should be granted. They are: is there a serious issue; will the Plaintiffs suffer irreparable harm without the injunction; and does the balance of convenience favour the granting of the injunction. Those factors have many sub-factors. I may have been enticed to return to blogging by hockey issues, but I am not going through all that analysis. Suffice it to say, the factors were met!

I will note that CIPPIC had some very important arguments in light of the balance of convenience discussion What about net neutrality? What about freedom of expression? The Court basically says sure, those are good points and important factors to consider! But we’re balancing here, and the rights holders rights’ to not have their precious hockey games stolen is more important.

Finally, here is a quote you need to remember in a few minutes:

by the time the Order is implemented, the NHL playoffs will have begun. This substantially reduces the overall burden on the Third Party Respondents (as compared with the burden the Order would impose if the regular season was still underway) and means that the Order will only be in place for a very limited duration.

3. If so, on what terms should the Order be issued?

First, we need an independent expert to oversee this and write a report, so we’ll appoint one if the parties can’t agree on one. The expert will do the following:

First, the expert will review |||||||||||||||| to ensure |||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||; review the implementation of the blocking by at least some of the Third Party Respondents; and then submit a confidential report to the parties and the Court on these subjects.

Yes, that is a quote. There are certain things in this judgment that are blacked out. We’ve got access to the public version; there is a confidential version that has all the details! No need to bother with those.

The basics of the Order are:

Third Party Respondents shall, during each of the NHL Live Game Windows (as this term is defined in Confidential Schedule 2 of this Order) specified in Schedule 1 of this Order, block or attempt to block access, by at least their residential wireline Internet service customers, to each of the IP addresses for the Target Servers (as this term is defined in Confidential Schedule 2 of this Order and as may be hereafter varied) which the Plaintiffs or their appointed agent have notified to the Third Party Respondents in accordance with this Order.

All the Plaintiffs together will have one “Agent” who is sort of like a middle man here. The Plaintiffs will report IP addresses to the Agent who will tell the ISPs to block them immediately, or at least asap. The ISPs must post a message saying “haha, nice try freeloader this site is blocked and here is why” (I am paraphrasing). When the “NHL Live Game Window” (which is what it sounds like) is over, the ISPs can unblock the sites. Well isn’t that nice. The Order ends when the 2021-2022 NHL season ends. Congrats to the Colorado Avalanche. Which brings us to…

NHL Live Games Site Blocking, Part Deux

So remember that quote I told you you would have to remember in a few minutes? Well, we’re here. The May Order was brief and only until the end of that season. Did you think the Plaintiffs would just let this go? Oh you are naïve.

On November 21, 2022, the Federal Court released a new opinion (PDF). It’s the same case, the same parties (though a couple of new ISP Third-Part Respondents have been added). It seems to have gone under the radar. When the May decision was announced it was big news. A current Google News search for “federal court site blocking canada hockey games” produces zero results from the November decision. I got the decision from Torrent Freak, the best site for all your internet piracy legal news.

Luckily this decision / order is much shorter. Remember that independent expert the court would name? His name is David Lipkus. Some Googling would indicate it is most likely this David Lipkus, whose lawyer bio indicates he “has dedicated his practice to stopping infringers from using or reproducing his clients’ intellectual properties without permission in Canada, and online.” Wonder whose side he is on? But I digress.

ANYWAY. Plaintiffs went back into Court seeking the same order for the 2022-23 NHL season. None of the Third-Party Respondents objected this time. Only CIPPIC was in there trying its best, and failing. The “decision” is not really a decision with reasoning and discussion, it just has some preamble that says we’re all good here thanks to Mr. Lipkus:

AND UPON taking note that, in his analysis of the implementation of the Original Order, Mr. Lipkus found that nine (9) out of ten (10) Third Party Respondents were able to block 100% of the tested IP Addresses, and that there were no legitimate complaints from any of the individuals or businesses related to the blocking;

AND UPON taking note that, in their analysis of the effectiveness of the Original Order, Mr. Lipkus and Mr. Wilkins concluded that the empirical data supported an assessment that the overall supply of infringing copyrighted content was reduced and that the Original Order met the necessary conditions for effectiveness, because it delivered that measurable benefit for a low cost;

The Court goes on to ORDER ORDER ORDER. First, Defendants shall STOP rebroadcasting games without the express written permission of Major League Baseball. Of course that won’t work, so the rest of the ORDER is just repeating the May order ordering the ISPs to block the sites the Agent tells them to, essentially using the same language from that decision. The Court adds:

This Order shall terminate at the end of the last NHL Live Game Windows of the 2022-2023 NHL season (i.e., the final of the Stanley Cup) or at the time judgment is rendered on the Plaintiffs’ underlying action or the latter is dismissed, which ever comes first.

As certain of the ISPs noted in the first case, that “judgment” in the underlying action is probably never happening. The Plaintiffs got what they wanted.

The Court then spends many pages saying a whole bunch of stuff will remain confidential. No need to bother with those details! David Lipkus gets to continue his role, and will prepare another report within 30 days of the end of the season. And we’re done.

Superterrific Happy Hour Analysis

It’s the copyright owners’ world now, and we’re all just living in it.