FairPlay regime ineffective, counter to Telecom Act: opponents

A proposal to implement a website-blocking system to fight piracy has drawn opposition from academics and advocacy groups in Canada, as well as input from international players and unusually high engagement from the public. Nearly 10,000 total comments, the vast majority from individuals, were submitted directly to the CRTC, while three campaigns by advocacy groups opposed to the FairPlay proposal collected input from more than 100,000 Canadians. The Canadian Internet Policy & Public Interest Clinic (CIPPIC) submitted 82,957 opposing comments collected by OpenMedia, global consumer group SumofUs presented around 35,000 comments, and advocacy group Leadnow filed a petition against the proposal with 22,650 signatures. Comments in the CRTC’s proceeding on the regime proposed by the FairPlay coalition were due March 29. The group, a 25-member coalition of Canada’s largest telecoms and broadcasters, including BCE Inc., Quebecor Inc., Rogers Communications Inc. and Corus Entertainment Inc., and groups representing content creators, is asking the CRTC to create an independent agency that would “identify websites and services that are blatantly, overwhelmingly, or structurally engaged in piracy,” which ISPs would be required to block customers from accessing. Opposition from outside Canada included the Wikimedia Foundation, a U.S.-based coalition that includes Alphabet Inc. and Amazon.com Inc., and a representative of the United Nations. Approving the proposal would mark a “paradigm shift” in the role of internet service providers (ISPs), Wikimedia wrote, by involving ISPs in copyright enforcement. “It is the job of an ISP to provide customers with a connection to the Internet, without making judgements about what websites a customer is or isn’t allowed to visit,” it said. At the same time, a submission by United Nations special rapporteur David Kaye warned that the FairPlay application “raises serious inconsistencies with Canada’s obligations under Article 19 of the International Covenant on Civil and Political Rights.” Kaye called website blocking an “extreme measure” that he said is “almost always” a disproportionate approach towards achieving copyright law enforcement. The Washington, D.C.-based Internet Infrastructure Coalition, whose members include Google, Amazon and Cogeco Inc.’s Peer1 subsidiary, also asked the CRTC to reject the proposal. The group argued the plan would harm innovation and Canada’s global internet leadership. In an email following the publication of this story, Cogeco spokeswoman Nancy Bouffard said that while Peer1 is a member of the Internet Infrastructure Coalition, "this coalition never consulted its members before taking its position" against Fairplay publicly. In fact, Cogeco and all its subsidiaries are in support of FairPlay." Cogeco is a member of the FairPlay coalition. “Canada’s Internet is not merely made up of the major broadband ISPs. In fact, the Internet ecosystem is predominantly made up of cloud infrastructure providers, domain registries and registrars, web hosting providers, data centers, and various other Internet intermediaries, many of them small businesses,” the group said in its intervention. It said the FairPlay regime would harm those small businesses, as well as create regulatory and legal hurdles to the internet infrastructure industry, which would hurt, by extension, Canada’s economy. Criticism also came from closer to home, where many of the Canadian groups which oppose the proposal agreed that the CRTC does not have the jurisdiction to implement what FairPlay is asking. Jurisdiction, or lack thereof, was one of the arguments made by the Public Interest Advocacy Centre (PIAC), which said the CRTC’s power to make regulations is limited by the scope of the objectives of the Telecommunications Act, which don’t include copyright. The proposal would also create an “unacceptable risk of unjust discrimination” contrary to section 27(2) of that legislation, PIAC said, arguing it also conflicts with other sections of the act. It said that if Parliament had meant to give the CRTC the power to control content of telecommunications, it would have “clearly indicated this intent” in the legislation. The Forum for Research and Policy in Communications (FPRC) made many of the same points, arguing that the proposal would have the CRTC “exceed its legal mandate and authority, by disregarding telecommunications policy objectives in favour of broadcasting and copyright objectives.” Instead of the Telecom Act, the government specifically chose to make broadcasting and cultural issues the purview of the Broadcasting Act, which “addresses matters such as broadcasters’ viability and employment and compensation for Canada’s creators,” wrote the FRPC. Speaking to the coalition’s arguments that piracy is harming TV providers, the group asserted that the “fact that broadcasting distribution undertakings are losing subscriptions is not a problem for telecommunications policy. Canadians’ keen interest in using the Internet represents successful telecommunications innovation on the one hand, and a technological shift in broadcasting on the other. Parliament cannot have intended that the CRTC would attempt to block innovation under the Telecommunications Act, to somehow counter technological shifts under the Broadcasting Act.” The group argued that the application is “colorably a back-door attempt to change copyright law primarily to the benefit of a very small number of very large and already very profitable communications companies.” The FPRC also added Canadian courts have proven that they are able to effectively enforce copyright law on behalf of rights holders, finding in their favour in cases involving Kodi add-ons and pre-loaded set-top boxes. University of Ottawa law professor Michael Geist was among those who took issue with the data the coalition used to support its argument that piracy is a significant problem in Canada. Geist noted studies demonstrating that Canada isn’t a global leader when it comes to piracy and that piracy by Canadians has been decreasing. He included numbers released by the Canadian Media Producers Association (CMPA) showing that the Canadian film and television sector was worth $8 billion last year, more than a billion more than at any point over the last decade. He said the coalition’s proposal must “not only make the case that there is a significant Canadian piracy problem, but also that piracy is having an enormous impact on the business and creative sectors. Yet the Canadian data on the digital economy and Canadian creative sector show a thriving industry.” While the coalition had argued that many countries have website-blocking systems, Geist said the proposal itself wasn’t consistent with global standards because most of those systems involve court orders, while the FairPlay regime would not. Out of the 22 countries that block websites to enforce copyright, 20 have in the past or currently use court orders, he said. Geist also expressed concern about over-blocking, arguing that the definition of piracy sites is likely to expand. “Once the list of piracy sites is addressed, it is very likely that the Coalition will turn its attention to other sites and services such as virtual private networks (VPNs),” noting that the VPNs have been a “sore spot for the companies for many years.” A similar study by Carleton University professor Dwayne Winseck and PhD candidate Ben Klass showed 18 countries out of 21 that practice website blocking require a court order to do so. They also warned that vertical integration means there would be a conflict of interest, or the appearance of one, in the system FairPlay proposes. “In effect, these broadcasters would make appeals to a board made up at least in part of their own affiliated ISPs, which would, in turn, recommend to the CRTC that it issue blocking directives against those same ISPs. This, we submit, would be an effort on the part of those vertically integrated carrier/ISP/broadcaster/ to do indirectly what they cannot do directly: i.e. to control the content or influence the meaning or purpose of telecommunications carried for the public,” they said. Small internet service providers also spoke out against the proposal, with the Canadian Network Operators’ Consortium (CNOC) outlining the various issues associated with the options for website blocking technology. It said ISPs have three methods they can use to block access to websites; blocking the IP address, DNS blocking and using deep packet inspection (DPI) technology, and all three can be circumvented through the use of a virtual private network (VPN). IP address blocking is extremely ineffective, given it could take as little as a few minutes for a website operator to obtain a new IP address for the website. It would also likely result in the blocking of legitimate content because multiple websites often share an IP address, CNOC said. While DNS blocking is more effective, it shouldn’t be adopted either, the group said, noting that “an end-user could easily circumvent DNS blocking, even without recourse to VPNs, by choosing to use a third-party DNS service, such as Google DNS, instead of their ISP’s DNS service. It is possible for an end user to set-up a third-party DNS service in a matter of minutes, for no charge.” DPI technology, although it’s the most effective way of filtering web content, it’s also very expensive, CNOC said. “Many competitive ISPs are unable to bear the costs of DPI technology and a requirement to make use of this technology would have the effect of driving many competitive ISPs out of business,” it argued. CNOC added that “all three methods of website blocking described above can be easily circumvented by end-users making use of VPNs, which are easy to use and readily available for a few dollars a month.” The coalition’s proposal also had backing, with FairPlay filing 22 supporting submissions from the production and content sectors. The Canada Media Fund (CMF) submitted an intervention in favour of the proposal, writing that it “is unreasonable to expect an artist or a small Canadian production company to track down and sue multiple anonymous parties operating in other countries every time their content is stolen. This is something they simply do not have the resources to do. FairPlay is proposing a common-sense solution that would better support the rights of Canadian content creators and provide a modernized set of tools to prevent access to illegal pirated content.” Telus Corp. and Shaw Communications Inc. were also in favour. Shaw said that as both as an ISP and a broadcast distributor, it “has an interest in a regulatory and legal framework that protects our customers from malicious threats associated with online piracy services and ensures that the illegal dissemination of pirated content does not threaten the Canadian communications system or undermine the network investment that supports the provision of lawful content to Canadians.” The Canadian Cable Systems Alliance (CCSA), which represents small telecom service providers, was conditional in its support, saying that it backed the proposal so long as small ISPs don’t have to bear any of the costs. — With reporting by Anja Karadeglija at akarad@thewirereport.ca and editing by Bryson Masse at bmasse@thewirereport.ca

FairPlay regime ineffective, counter to Telecom Act: opponents

News | April 5, 2018

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FairPlay regime ineffective, counter to Telecom Act: opponents

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