IIC Canada: Is site blocking a reasonable approach to piracy, or overkill?

[Len]

Piracy continues to be a major problem for the international content industry. Whether it’s the Premier League football in the UK or HBO’s Game of Thrones, rights holders are under pressure to find ways to stem the piracy tide. As a potential remedy, site blocking was one option raised at the International Institute of Communications’ Canadian event in Ottawa this week.

A paper by Richard Lizius, an associate with McCarthy Tétrault argued that site blocking is a legitimate approach and the Canadian courts have the authority to issue such orders (Lizius wasn’t in attendance; he was at the Federal Court wholesale TV appeal hearing. Click here for that story). Speaking in support of the paper, Tom Sutton, a partner at the law firm, noted that in addition to being technologically possible, such site blocking orders are supported by jurisprudence.

In his remarks, Sutton said it’s never been easier to access pirated content. Various online resources including streaming websites, peer to peer networks and “perhaps most significantly, consumer friendly, easy to operate set top boxes. In those ways, it’s never been easier from the consumers’ perspective, the average everyday person’s perspective, to access pirated content,” he said.

Moreover, this means it’s even easier for pirates to capitalize. “The barriers to entry both from the pirate’s perspective in terms of setting up these networks and setting up these systems but also from the consumer’s perspective have dropped significantly,” said Sutton. Some of the boxes are basically plug-and-play where once a user powers them and plugs them into their TVs and internet connection, it will essentially seek out and display pirated content on its own, displaying it in a consumer-friendly way, as well.

There are several jurisdictions outside of Canada that have already amended their statutory regimes expressly to allow for site blocking. Sutton pointed to the UK where the courts have ordered ISPs to block access to infringing websites. In fact, one case demonstrated the ability to block an illegal live broadcast of an Premier League match.

Since Canada has a system that is very common to that of the UK and jurisdictions that have used blocking orders, the Canadian courts, both provincial superior courts and the federal court “have the jurisdiction to grant site blocking injunctions,” argued Sutton.

Not everyone on the panel agreed that site blocking is the best way of addressing piracy. Ariel Katz, associate professor and innovation chair in electronic commerce in the Faculty of Law at University of Toronto, argued piracy exists because people think legitimately accessing the content is too expensive. If content owners want less piracy, they should reduce the price of their content, he suggested.

Legally, he added, Canadian courts don’t have the authority to impose site blocking orders. “Contrary to the main theme of the paper that suggests Canadian courts already have the power to issue blocking orders, I challenge this position. I think that Canadian courts do not have the power to issue blocking orders … without legislation to give them this power,” Katz said.

Bram Abramson, Ford-Mozilla Open Web Fellow for The Citizen Lab at the University of Toronto, said site blocking may not work in all cases. He suggested that it may be too steep of a remedy from a proportionality perspective. In essence, it’s overkill. “I don’t say that ISP blocking is the devil. I do say it’s a bit of a nuclear bomb option. It seems to me that generally, there are lighter, there are less extreme measures that I think often are more effective. I think that ISP blocking is expensive to implement,” he said.

Abramson suggested search engine delisting as a less invasive, less expensive option. One company would do the delisting order as opposed to multiple companies having to block an infringing website, he explained.

One conference delegate noted to the panel the music industry’s fight with pirates was solved by one simple development – effective music streaming services that pay content owners. Why then does the video content industry require such extraordinary remedies like site blocking, it was asked?

“You’re right the music is a great example. Good tech followed,” acknowledged Sutton. He added though technological advancement and legal remedies aren’t mutually exclusive, both are needed at the same time.

“If we need to come up with new methodology to protect those rights I think we have to adapt along with the technology to protect them,” he said.