By Jaimie Bordman
As copyright pirates continue to develop ever more complex ways to evade copyright enforcement, content owners must continually devise new ways of stopping them. In a recent decision, Canada’s Federal Court has provided content owners a significant new tool to use in their efforts to stop piracy.
Known as a Dynamic Site Blocking Order, the Order compels third party internet service providers (ISPs) to block access to internet sites as identified by the content owners from time to time, sometimes on very short notice. This type of Order differs from Static Site Blocking Orders, where the sites to be blocked are specifically identified in the Order, and the addition of new sites to be blocked requires Court intervention to amend the Order.
While Static Site Blocking Orders have been issued by Canadian courts before, this is the first time that a Canadian court has issued a Dynamic Site Blocking Order.
The site blocking order was issued to the owners of the National Hockey League’s Stanley Cup Playoffs, to prevent unauthorized redistribution of the coverage by unidentified pirates. The unprecedented dynamic nature of the order was necessary because of the pirates’ advanced means of evading detection, which included frequently relocating the illegal feed to new internet sites, sometimes several times per game. Due to the nature of the copyright works as a live broadcast, the owners required the ability to quickly add new sites to the site blocking order; without this ability, they would effectively have no means of preventing unauthorized access to their content.
The Order was opposed by several of the ISPs that will be required to block the sites under the Order. Several concerns were raised, including the possibility of inadvertently blocking access to legal content, and the cost of compliance with the order. For some ISPs, core network equipment would have to be upgraded in order to block sites as required, which would substantially add to the cost of compliance.
The Court was sympathetic to many of these concerns, and issued the Dynamic Site Blocking Order subject to several conditions, including the following:
- The content owner is required to retain a third party expert to monitor the owner’s use of the Order, and ensure that blocked sites are properly identified;
- No ISP will be required to upgrade equipment to comply with the Order;
- ISPs will be entitled to full reimbursement of their costs incurred to implement the Order. Reimbursement is capped at a maximum amount, but reasonable costs to implement the Order are not expected to exceed that cap.
Despite these strict conditions, the Court’s Dynamic Site Blocking Order establishes precedent in Canada for a powerful new tool for copyright owners to enforce their legal rights against pirates who go to great lengths to infringe.
The Court’s lengthy reasons for issuing the Order can be seen in Rogers Media Inc. et al. v. Doe 1 et al., 20220 FC 775.
By Jaimie Bordman