With illegal streaming of live sporting events still causing headaches for leagues and broadcasters alike, rightsholders continue to demand more flexible tools to prevent infringement, especially via pirate IPTV services.
ISP blocking is one of the preferred anti-piracy tools and in 2019, following a complaint from major media companies including Rogers, Bell and TVA, Canada’s Federal Court approved the country’s first blocking injunction targeting IPTV service GoldTV.
While local ISPs complied with the injunction, not all were completely happy to do so. TekSavvy complained that granting one blocking injunction would likely lead to requests for many more, costing ISPs time and money. The ISP also noted that blocking was unlikely to be effective and within days, that prediction proved correct.
TekSavvy’s official appeal was unsuccessful and a hearing was later rejected by the Supreme Court. However, another of the ISP’s predictions, that more injunctions would be demanded by rightsholders, was 100% correct.
Broadcasters Demand ‘Dynamic’ Injunction
After putting the first foot on the blocking ladder with their success in the GoldTV case, companies including Rogers Media, Rogers Communications, BCE, Bell Media, CTV Specialty Television, The Sports Network, Le Reseau Des Sports, and Groupe TVA, returned with a new injunction application at the Federal Court last summer.
It targeted John Doe 1 and John Doe 2, plus countless unknown additional entities offering NHL games via pirate IPTV streams in Canada. Several local ISPs including TekSavvy, Eastlink, Cogeco, Rogers, Shaw, and Videotron were named as third-party respondents.
The plaintiffs, all NHL live game rightsholders, told the Federal Court that their earlier efforts to prevent piracy had proven inadequate. Since pirate IPTV operators use every possible technique to go undetected and often operate abroad, cutting off illegal streams at the source isn’t possible. As a result, forcing local ISPs to implement blocking to prevent subscriber access would be the most realistic alternative.
Building on their experience of how a static order (targeting static domains and specific IP addresses) in the GoldTV case underperformed, the plaintiffs asked the Court for a dynamic order, i.e one that could be updated on the fly with new online locations as games are being broadcast, mimicking the system in place to protect Premier League football games in the UK.
Opposition to the Dynamic Injunction
While some ISPs were happy to consent to the injunction due to connections with the plaintiffs, objections were put forward by other ISPs and case intervener, Canadian Internet Policy and Public Interest Clinic (CIPPIC).
There was a general sense that the plaintiffs had acted unfairly, in that they had prepared their application over many months but then demanded an urgent hearing, putting the ISPs at a disadvantage. Some of the respondents felt that the plaintiffs had failed to prove their case and that any injunction handed down would impose undue risks, practical difficulties, and additional costs on ISPs.
CIPPIC voiced concerns (pdf) that the blocking regime as requested would be operated primarily by a private anti-piracy company with minimal court supervision, raising questions over freedom of expression and the potential for over-blocking.
Federal Court Grants Interlocutory Injunction
Late last month, Federal Court Judge Mr Justice Pentney handed down a mandatory interlocutory injunction that attempts to balance the rights of the plaintiffs with those of the ISPs and other internet users.
Running to 119 pages, the order recognizes that the plaintiffs would suffer “irreparable harm” without a blocking order but notes that measures need to be taken to ensure that burdens imposed on ISPs are minimized along with the potential for over-blocking of legitimate content.
First, the injunction is time-limited and at least in the first instance will time out after the final of the Stanley Cup, unless the Court orders otherwise. Second, the ISPs will be compensated for costs they incur complying with the order and third, the plaintiffs must retain an independent expert to ensure that blocking is carried out in line with the Court’s orders.
The Blocking Measures
Justice Pentney’s order does not reveal the methods used by the plaintiffs to identify piracy and determine that blocking is feasible to avoid “commercially sensitive information” being made public, especially to those who might use the information to facilitate illegal streams. However, it does reveal the anti-piracy company in charge of the operation.
The plaintiffs will be partnering with Friend MTS, the anti-piracy company that handles the Premier League’s blocking measures in the UK and Ireland. The company’s methods are tightly guarded but some information has leaked out over the years.
The ISPs will be provided with lists of IP addresses during each of the ‘NHL Live Game Windows’ detailed in the order. The times are redacted in the public copy but IP addresses received in these windows must be immediately blocked by Canadian ISPs, if they are able to do so.
The IP addresses must have been used previously during an ‘NHL Live Game Window’ to illegally broadcast an NHL live game but other sensitive safeguarding measures are not being made public. ISPs do not have to verify if the IP addresses are indeed carrying infringing content and can use manual or automatic IP address blocking/rerouting or equivalent technical means.
When an ‘NHL Live Game Window’ closes, an order will be sent to ISPs to unblock all of the blocked IP addresses as soon as “reasonably practical”. ISPs will not be in breach of the order if they need to suspend blocking to investigate cases of over-blocking or to maintain their systems.
Reporting Back to the Court
To maintain oversight, Justice Pentney instructs the plaintiffs, with input from the ISPs, to retain an independent expert (or up to three) to review the application of the Court’s criteria for the identification of IP addresses for blocking.
A report must be sent to the Court containing all IP addresses, the dates and times when they were required to be blocked, and the criteria applied that resulted in their blocking. The expert(s) are required to report on the implementation of blocking at the ISPs and to report on compliance with the Court’s order in respect of all parties.
The expert will also be required to assess and report on the effectiveness of the Order, including the criteria for measuring success, why these were selected, and the results of the assessment. CIPPIC notes that data acquired as a result of this process will be useful when the plaintiffs request an extension to the injunction.
“Specifically, if Rogers, Bell, and the other media companies who applied for this order wish to extend its application beyond the 2022 playoff season, the independent audit will need to establish that collateral blocking of legitimate content was minimal and that the blocking was effective in actually increasing legitimate subscriptions rather than simply driving customers to other forms of infringement or adoption of VPN services,” CIPPIC writes.
The Federal Court’s order can be found here (pdf)
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