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IdeaBlast: FairPlay &

Internet Piracy
February 2, 2018
Barry B. Sookman
Telephone: 416-601-7949
Fax: 416-868-0673
Email: bsookman@mccarthy.ca

McCarthy Tétrault LLP / mccarthy.ca 17503985
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/.
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