Ordering pirate site blocking would ‘leapfrog’ BTLR: TekSavvy lawyer

OTTAWA — On the second and final day of a potentially precedent-setting court hearing on site-blocking, a Federal Court judge gave the parties until Wednesday to negotiate a revised draft site blocking motion. The original motion from the plaintiffs in the case — BCE Inc., Rogers Communications Inc., and Quebecor Inc. — would require seven third-party internet service providers (ISPs) to block GoldTV.ca and GoldTV.biz, two pirate “IPTV” websites the plaintiffs are suing. The sites, which were not functioning on Friday afternoon, offer subscriptions to live and on-demand TV content for either a $15 monthly fee or a $150 yearly fee. Federal Court judge Patrick Gleeson opened Thursday’s proceedings by rebuking the lawyers for the big telecom companies for not having worked harder to draft a motion agreeable to the ISPs they are asking the court to mandate block the websites. “I’m a little bit troubled, I guess, by the fact that there hasn’t been a greater effort, based on what I hear from submissions yesterday,” Gleeson said, referring to Wednesday’s proceedings. According to lawyers from Distributel and TekSavvy Solutions Inc., the third-party ISPs -- including Shaw Communications Inc., Saskatchewan Telecommunications Holding Corp., Telus Corp., Bragg Communications Inc.’s Eastlink, and Cogeco Inc. -- did not receive a copy of the draft site-blocking motion from the plaintiffs until 4:30 p.m. on Tuesday, the day before the proceedings began. A lawyer representing Distributel argued on Wednesday that the company -- while not consenting to or disputing the merits of the site-blocking motion -- took issue with the cost and reimbursement procedures outlined in the draft motion. Gleeson said he was sympathetic to that argument. Lawyers representing the plaintiffs asked the court for time to negotiate a more agreed upon version of the draft motion, and Gleeson granted time until Wednesday, Sep. 18 to do so. Elsewhere in the proceeding, TekSavvy continued the argument that any site-blocking motion would effectively “leap-frog” parallel processes that are taking place in the government’s review of Canada's communication legislation, known as the Broadcasting and Telecommunications Legislative Review, or BTLR, which is due to release its report in January 2020. “It’s coming. It’s relevant,” TekSavvy lawyer Colin Baxter told the court. Baxter went on to argue that a site-blocking motion for GoldTV would establish precedents that could lead to future site-blocking for claims of defamation, or hate speech, circumstances and violations that are more nuanced than the black and white piracy case offered by GoldTV. Gleeson pushed back, advising Baxter that the proposed motion from the telecom companies was focused on GoldTV. “This court today is focused on a very specific application, dealing with a very specific, targeted set of websites that are alleged to be engaged in very specific activities contrary to the Copyright Act,” he told Baxter. Baxter responded that “the remedy sought is unique. It has never been ordered. It is precedential. One should approach with temerity the area for precisely the reason I’ve just pointed you to. It is not like another case where we find a knock-off handbag on the street … This is big your honor.” Baxter also argued that the CRTC had previously placed a high barrier -- prior commission approval under section 36 -- on the use of Internet traffic management practices (ITMPs) back in 2009. In August of this year, telecom companies argued to the CRTC that new ITMP practices on their “unlimited” mobile data plans did not violate the commission's net neutrality framework. On Wednesday, plaintiff lawyers had argued that there was helpful precedent set by U.K. court in a site-blocking case in that country, Cartier v. British Sky Broadcasting. The Supreme Court of Canada relied upon in its decision in the Equustek case, in which the court ruled that Alphabet Inc.’s Google would have to de-list links to a site that Equustek Solutions Inc. said infringed on its copyright. Baxter said that the British jurisprudence, as well as jurisprudence from Australia and Ireland, also held that there was express legislative authority for site-blocking as a remedy, an authority which Baxter argued does not exist in Canada. Amongst other arguments, Baxter also told Gleeson that the plaintiffs did not attempt other “less-intrusive” measures before resorting to asking for site-blocking, such as attempting to contact GoldTV’s payment service PayPal. The plaintiffs and third-party ISPs have until next Wednesday to present a new draft motion to the court, and Gleeson granted TekSavvy until Sept. 23 for additional submissions, and the plaintiffs till Wednesday, Sept. 25 for their replies. — With reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Ordering pirate site blocking would ‘leapfrog’ BTLR: TekSavvy lawyer

News | September 13, 2019

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Ordering pirate site blocking would ‘leapfrog’ BTLR: TekSavvy lawyer

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