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  1. 1. McCarthy Tétrault LLP / mccarthy.ca Barry B. Sookman Telephone: 416-601-7949 Fax: 416-868-0673 Email: bsookman@mccarthy.ca IdeaBlast: FairPlay & Internet Piracy February 2, 2018 17503985
  2. 2. McCarthy Tétrault LLP / mccarthy.ca 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 17503985
  3. 3. McCarthy Tétrault LLP / mccarthy.ca FairPlay Canada Partners 17503985
  4. 4. McCarthy Tétrault LLP / mccarthy.ca ¬ “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 17503985
  5. 5. McCarthy Tétrault LLP / mccarthy.ca KODI – Select Live Canadian TV Channels 17503985
  6. 6. McCarthy Tétrault LLP / mccarthy.ca KODI – On-Demand Library 17503985
  7. 7. McCarthy Tétrault LLP / mccarthy.ca IFPI, Connecting with Music, Consumer Report, September 2017 17503985
  8. 8. McCarthy Tétrault LLP / mccarthy.ca 17503985
  9. 9. McCarthy Tétrault LLP / mccarthy.ca 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” 17503985
  10. 10. McCarthy Tétrault LLP / mccarthy.ca 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
  11. 11. McCarthy Tétrault LLP / mccarthy.ca 17503985
  12. 12. McCarthy Tétrault LLP / mccarthy.ca ¬ 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? 17503985
  13. 13. McCarthy Tétrault LLP / mccarthy.ca ¬ 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 17503985
  14. 14. McCarthy Tétrault LLP / mccarthy.ca ¬ 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 17503985
  15. 15. McCarthy Tétrault LLP / mccarthy.ca 17503985
  16. 16. McCarthy Tétrault LLP / mccarthy.ca ¬ 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? 17503985
  17. 17. McCarthy Tétrault LLP / mccarthy.ca 17503985
  18. 18. McCarthy Tétrault LLP / mccarthy.ca 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”.
  19. 19. McCarthy Tétrault LLP / mccarthy.ca 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.”
  20. 20. McCarthy Tétrault LLP / mccarthy.ca 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.”
  21. 21. McCarthy Tétrault LLP / mccarthy.ca 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/. / mmmm yyyy / # 123456
  22. 22. McCarthy Tétrault LLP / mccarthy.ca VANCOUVER Suite 1300, 777 Dunsmuir Street P.O. Box 10424, Pacific Centre Vancouver BC V7Y 1K2 Tel: 604-643-7100 Fax: 604-643-7900 Toll-Free: 1-877-244-7711 CALGARY Suite 4000, 421 7th Avenue SW Calgary AB T2P 4K9 Tel: 403-260-3500 Fax: 403-260-3501 Toll-Free: 1-877-244-7711 TORONTO Suite 5300, TD Bank Tower Box 48, 66 Wellington Street West Toronto (Ontario) M5K 1E6 Tel: 416-362-1812 Fax: 416-868-0673 Toll-Free: 1-877-244-7711 MONTRÉAL Suite 2500 1000 De La Gauchetière Street West Montréal QC H3B 0A2 Tel: 514-397-4100 Fax: 514-875-6246 Toll-Free: 1-877-244-7711 QUÉBEC Le Complexe St-Amable 1150, rue de Claire-Fontaine, 7e étage Québec QC G1R 5G4 Tel: 418-521-3000 Fax: 418-521-3099 Toll-Free: 1-877-244-7711 UNITED KINGDOM & EUROPE 125 Old Broad Street, 26th Floor London EC2N 1AR UNITED KINGDOM Tel: +44 (0)20 7786 5700 Fax: +44 (0)20 7786 5702 17503985