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Thread: The Case Against the Bell Coalition’s Website Blocking Plan, Part 5:

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    Default The Case Against the Bell Coalition’s Website Blocking Plan, Part 5:

    The Inevitable Expansion of the Block List Standard for “Piracy” Sites

    The Bell coalition website blocking proposal downplays concerns about over-blocking that often accompanies site blocking regimes by arguing that it will be limited to “websites and services that are blatantly, overwhelmingly, or structurally engaged in piracy.” Having discussed piracy issues in Canada and how the absence of a court order makes the proposal an outlier with virtually every country that has permitted site blocking, the case against the website blocking plan now turns to the inevitability of over-blocking that comes from expanding the block list or from the technical realities of mandating site blocking across hundreds of ISPs for millions of subscribers. This post focuses on the likely expansion of the scope of piracy for the purposes of blocking and the forthcoming posts will discuss other sources of blocking over-reach.

    The Bell coalition’s definition for piracy sites is not found in legislation. Rather, it seeks to effectively draft its own legislative definitions for assessing whether a site or service is blatantly, overwhelmingly or structurally engaged in piracy. Regardless of the standard, the difficulty of identifying “pirate sites” should not be under-estimated. Consider the MUSO report that is the coalition’s primary source of piracy evidence. As I noted in the discussion on the evidence of piracy in Canada, MUSO has developed a list of 23,000 piracy sites which it uses as the basis for estimating the number of piracy visits in Canada. Yet the sample sites used by MUSO highlight the challenge in identifying what constitutes a piracy site, which is a difficult issue for developing reliable statistical data and an even bigger problem with respect to mandated website blocking.

    For example, its list of web download sites includes addic7ed.com, a site that contains user-generated sub-titles for television shows and movies. The site includes completed sub-titles and works in progress that allow users to contribute to the translations and sub-titles. It does not contain full video or audio. The legality of user-generated sub-titles may be open for debate (sub-titles can be used for lawfully acquired videos) but few would think of this kind of site as one that is “blatantly, overwhelmingly, or structurally engaged in piracy.”

    The MUSO list also contains multiple sites that can be used to capture the video from sites such as YouTube. Stream ripping is a concern for the music industry, but these technologies (which are also found in readily available software programs from a local BestBuy) also have considerable non-infringing uses, such as for downloading Creative Commons licensed videos also found on video sites.

    The obvious question is whether the Bell coalition believes these sites meet its standard for blocking. If they do, the standard is far lower than what would be commonly understood as a site or service that is blatantly, overwhelmingly or structurally engaged in piracy. If they fall outside the standard, the validity of the MUSO report is called into question since its estimate of piracy visits in Canada include visits to those sites. In other words, either the scope of block list coverage is far broader than the coalition admits or its piracy evidence is inflated by including sites that do not meet its piracy standard.

    Once the list of piracy sites (whatever the standard) is addressed, it is very likely that the Bell coalition will turn its attention to other sites and services such as virtual private networks (VPNs). This is not mere speculation. Rather, it is taking Bell and its allies at their word on how they believe certain services and sites constitute theft. The use of VPNs, which enhance privacy but also allow users to access out-of-market content, has been sore spot for the companies for many years. In 2015, Rogers executive David Purdy reportedly called for shutting down VPNs, while Bell executive Mary Ann Turcke specifically targeted VPN usage to access U.S. Netflix, telling an industry conference:

    “It has to become socially unacceptable to admit to another human being that you are VPNing into U.S. Netflix. Like throwing garbage out your car window – you just don’t do it. We have to get engaged and tell people they are stealing. When we were young and made the error of swiping candy bars at the checkout of the grocery store, what did our parents do? They marched us back in, humiliated us, told us to apologize to the nice lady and likely scolded us on the way home.”

    In the aftermath of those comments, briefing notes for Canadian Heritage Minister Melanie Joly identified VPNs as an emerging copyright issue. The comments equating VPN use to theft echo the remarks being made today by the Bell coalition about piracy sites and services. Further, since the response to site blocking from some Internet users will surely involve increased use of VPNs to evade the blocks, the attempt to characterize VPNs as services engaged in piracy will only increase. VPN services are already targeted by IP lobby groups such as the IIPA and can be expected to face demands for blocking (similar to the way Netflix and Hulu have cracked down on VPN use).

    Beyond VPNs, it would not be surprising to find legitimate services streaming unlicensed content as the next target. With Bell characterizing accessing U.S. Netflix as stealing, the company may call for blocking of content from foreign services without Canadian rights. In fact, that is precisely what Bell argued in 2015 in the context of U.S. television signals. Kevin Crull, then president of Bell Media, told a conference:

    Canada is the only country in the world that allows American networks to be retransmitted without restriction despite valid and exclusive copyrights held by domestic broadcasters…Do we need [the American over-the-air] networks? Are these signals necessary for Canadian viewers? No. Canadian networks buy the rights to 99 of the top 100 American shows. No viewer would be denied popular content.

    The Bell solution was simple: block U.S. signals on cable and satellite services. The argument in the Internet streaming service context will be the same, namely that Canadian rights holders are having their rights undermined by the accessibility of unlicensed U.S. streams that constitute infringement in Canada. Given the past arguments against access to these sites and services, which Bell coalition members have called “stealing” and “theft”, the steady expansion of the block list seems like an inevitability, which is why the exclusion of Parliament in setting policy and the courts in reaching any determination with respect to blocking is a step in the wrong direction.

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    part 6
    Over-blocking of legitimate websites

    As the public concern over the Bell coalition website blocking plan continues to grow (both the Canadian Press and CBC this weekend covered the thousands of interventions at the CRTC), the case against the plan resumes with a review of why it is likely that it will lead to over-blocking of legitimate websites. Last week’s post highlighted the probable expansion of the scope of piracy for blocking purposes, a theme that continues today with a look at the many incidents over-blocking of legitimate sites sparked by website blocking (other posts in the series include the state of Canadian copyright, weak evidence on the state of Canadian piracy, the limited impact of piracy, and why the absence of a court order would place Canada at odds with virtually all its allies).

    The danger of over-blocking legitimate websites raises serious freedom of expression concerns, particularly since experience suggests that over-blocking is a likely outcome of blocking systems. The Council of Europe Commissioner for Human Rights issued a report in 2014 on the rule of law on the Internet in the wider digital world, noting:

    blocking is inherently likely to produce unintentional false positives (blocking sites with no prohibited material) and false negatives (when sites with prohibited material slip through the filter). From the point of view of freedom of expression, the most problematic is widespread over-blocking: the blocking of access to sites that are not in any way illegal, even by the standards supposedly applied.

    One of the best-known cases of over-blocking arose in Canada in 2005, when Telus unilaterally blocked access to a pro-union website without a court order during a labour dispute. In doing so, it simultaneously blocked access to an additional 766 websites hosted on the same computer server. The blocked sites included an engineering company, an Australian-based site promoting alternative medicine, a U.S. company that recycled electronics parts, and a fundraising site for breast cancer research. Today, Telus is largely dismissive of the blocking incident with an executive telling a House of Commons committee last week that “if you believe that this is the end of the world and the Internet as we know it, Godspeed. I think actually it is what it is.” Indeed, it is what it is: a Canadian telecom company violating what are now recognized as net neutrality rules by blocking hundreds of websites without a court order.

    Yet the real danger is that this is not ancient history. Working with University of Ottawa law students Tanvi Medhekar and Matt Westwell, we identified numerous instances around the world in recent years where anti-piracy blocking resulted in over-blocking of legitimate sites. For example, in 2013, UK ISPs blocked access to around 200 legitimate websites including Radio Times. The blocking occurred as a result of a court order targeting two file sharing websites. There have been many similar instances in the UK including the 2012 blocking of the Promo Bay and the 2015 blocking of CloudFlare customers. In fact, OFCOM, the UK regulator, anticipated the over-blocking issue in 2010 study that noted:

    We believe that IP address based site blocking is not granular and is likely to lead to over-blocking. This may undermine the confidence in any site-blocking scheme, and create significant liability risks for service providers. The over blocking property is a by-product of sites sharing IP addresses.

    The report noted risks of over-blocking with all technical approaches to site blocking.

    The UK experience has been replicated in other countries. For example, Argentina blocked access to over a million blogs after a court ordered blocking of two sites. Further, when Argentina blocked access to the Pirate Bay in 2014, it simultaneously blocked access for the entire country of Paraguay, which relies on Argentina and Brazil for its Internet connectivity. India blocked access to hundreds of sites, including Google Docs, after a court ordered blocking of a streaming site in 2014. In 2012, as a result of an order by the Madras High Court to block copyright content, 38 Internet providers, including Airtel, blocked a range of websites including legitimate content on video sharing sites such as Vimeo. Portugal, which the Bell coalition cites as a model, inadvertently blocked a U.S. video game developer in 2016. Most recently, Internet backbone provider Cogent blocked access last year to sites not included on a Spanish court order and Russia blocked access to 40,000 legitimate sites as it took aim at 4,000 sites on a piracy block list. The year before, a Moscow court issued an order blocking 1222 websites but more than 11,000 legitimate sites were blocked in the process.

    There are many examples of anti-piracy measures leading to over-blocking, but over-blocking can involve other content filtering. For example, the Australian Securities and Investment Commission, Australia’s financial regulator, revealed that in 2013 it blocked access to 250,000 legitimate sites after previously blocking another 1200 websites (including the Melbourne Free University) in an attempt to block two websites it accused of fraudulent activity. Further, one UK study found that one in five of the most visited sites on the Internet were being blocked by ISP filters.

    The Bell coalition website blocking proposal cites a 2017 UK court decision for the proposition that “there is no evidence of overblocking.” Yet that decision only examined blocking arising from several instances involving soccer streaming and did not review the broader evidence on the impact of blocking orders. A more fulsome review reveals that blocking orders frequently lead to over-blocking, potentially affecting tens of thousands or even hundreds of thousands of legitimate websites. Given the hundreds of ISPs in Canada with varying technical capabilities, mandated website blocking as proposed by the Bell coalition would likely lead to over-blocking of legitimate sites with providers left to shrug their shoulders and note that “it is what it is.”

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    Default Part 7: The Likely Expansion of the Block List to Non-IP Issues

    The case against the Bell coalition website blocking proposal has already identified at least two sources of likely expansion and over-blocking: expanding the scope of piracy sites and the over-blocking of legitimate sites that has frequently occurred with site blocking systems around the world. There is a third source worthy of examination, however, namely pressure to expand the block list to non-intellectual property issues (other posts in the series include the state of Canadian copyright, weak evidence on the state of Canadian piracy, the limited impact of piracy, and why the absence of a court order would place Canada at odds with virtually all its allies).

    This is the proverbial “slippery slope” argument, but what is notable this time is that proponents of the website blocking plan cite other forms blocking to support the inclusion of IP blocking. In particular, there have been references to Project Cleanfeed Canada, a longstanding blocking program of child pornography. It should be obvious that child pornography and unauthorized streaming sites are not comparable, but that has not stopped some from implying that support for child pornography blocking undermines opposition to IP blocking. Leaving aside the obvious difference between protecting children as opposed to allegations of intellectual property infringement, the blocking of child pornography can be justified on the grounds that even accessing child pornography is a criminal offence. Not so for viewing a streaming video, whether authorized or unauthorized.

    If the CRTC were to create a system for mandated website blocking of intellectual property issues, there is simply no doubt that it would quickly face requests for far more. For example, the first request for mandated website blocking involved a request in 2006 from Richard Warman to block two foreign-based hate sites. Warman provided the Commission with expert evidence that the sites violated the Criminal Code. Yet the CRTC refused to issue the order, noting that it did not think it had the legislative power under Section 36 to issue blocking orders:

    The Commission considers that the Application raises an extremely serious issue and has examined the Application very carefully. The Commission notes, however, that it is a creature of statute and can only exercise the powers granted to it by Parliament. The Commission notes that section 36 of the Act would not allow it to require Canadian carriers to block the web sites; rather, under section 36 of the Act, the Commission has the power to permit Canadian carriers to control the content or influence the meaning or purpose of telecommunications it carries for the public. The scope of this power has yet to be explored.

    With the floodgates opened, hate speech sites would quickly give way to online gambling and other regulated activities. The CRTC has already preliminarily ruled that blocking such sites is not permitted absent approval under very strict conditions:

    the Commission is of the preliminary view that the Act prohibits the blocking by Canadian carriers of access by end-users to specific websites on the Internet, whether or not this blocking is the result of an ITMP. Consequently, any such blocking is unlawful without prior Commission approval, which would only be given where it would further the telecommunications policy objectives. Accordingly, compliance with other legal or juridical requirements – whether municipal, provincial, or foreign – does not in and of itself justify the blocking of specific websites by Canadian carriers, in the absence of Commission approval under the Act.

    The importance of the Commission’s ruling, which importantly states that simply complying with other legal or juridical requirements (which would include the Copyright Act) does not justify blocking, will be further discussed in a future post. For the moment, it is notable that should the CRTC open the door to website blocking for intellectual property, other issues from hate speech to gambling to language requirements to other local regulatory or tax obligations will soon follow, leaving the CRTC as the arbiter of access to content online and Canada with a heavily regulated and filtered Internet.

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    part 8
    THE INEFFECTIVE OF WEBSITE BLOCKING

    The Bell website blocking coalition unsurprisingly argues that blocking “regimes have been widely adopted internationally because they have been proven to work.” The submission cites data from several countries including the UK, Portugal, and South Korea. As demonstrated last week, the Bell coalition proposal has not been widely adopted internationally. In fact, the overwhelming majority of countries have rejected approaches that do not include court orders. Moreover, a closer look at the data reveals that website blocking is far less effective than its proponents claim.

    The reports and studies on the effectiveness of website blocking often contain conflicting data. For example, INCOPRO, which sells site blocking services including lists of sites to block (and therefore has an obvious vested interest in promoting their effectiveness) has issued several studies on blocking. A 2017 INCOPRO study on the effectiveness of Australian website blocking points to reduction in piracy rates but also examined usage of a list of 250 unauthorized sites:

    Usage of the top 250 sites in Australia decreased by 4% (204,843) when comparing March 2017 to October 2016. Usage of the same sites reduced by 13% for the global (excluding Australia) group and by 10.8% for the global control group.

    The study attributes the fact that Australian declines with site blocking were lower than global averages by acknowledging that “there may have been an increase in the usage of some unblocked sites as a result of the most popular site being blocked.” INCOPRO released a new report on Australia this week that claims continued declines in piracy rates, but still contained evidence that even blocked sites show growth in Australia. For instance, the report references new blocked sites such as HDMoviesWatch.net. According to SimilarWeb, Australia remains the top traffic source for site with its share increasing, not decreasing.

    The likely shift of users to other sites or services unless massive blocking systems are deployed has been replicated in studies around the world. For example, a UK study found little impact when the Pirate Bay was blocked with authors concluding that effectiveness depended on far broader blocking efforts. A Dutch study on blocking the Pirate Bay went even further. Despite the expectation of reduced piracy rates:

    no such effect is found. Instead, the percentage downloading films & series, games and books from illegal sources in the preceding six months increased between May and November/December 2012, while downloading music from illegal sources remained constant. This implies that any behavioural change in response to blocking access to TPB has had no lasting net impact on the overall number of downloaders from illegal sources, as new consumers have started downloading from illegal sources and people learn to circumvent the blocking while new illegal sources may be launched, causing file sharing to increase again

    Many studies suffer from technical shortcomings given the inability to actually track the impact of users shifting to VPNs in order to preserve their privacy and evade blocking efforts. For example, the INCOPRO studies contain a key exclusion:

    General purpose VPN and proxy services have been excluded because they allow users to access any website of their choice. As a result, it cannot be definitively concluded that they are being used to access unauthorised sites.

    In addition to INCOPRO’s vested interest in claiming that site blocking is effective, the reliability of the data is therefore questionable given that it does not account for users who rely on VPNs for their Internet usage.

    In fact, there are no shortage of studies and court rulings that conclude site blocking has little impact:

    The UK’s OFCOM’s 2010 study on site blocking concluded “any injunction scheme operated under sections 17 and 18 of the DEA is unlikely to give rise to a sufficient level of actions to have a material impact on levels of copyright infringement.”
    The UK’s 2017 online copyright infringement tracker found no change in the percentage of users accessing unauthorized content online from the prior year.
    A similar consumer study in Australia obtained the same results with 2017 levels of infringement remaining the same from the prior year.
    A 2015 study by the Council of Europe states plainly that “blocking is not very effective in general.”
    Italy is often touted as an example for site blocking, yet piracy rates of movies has only declined by 4% since 2010 and the rate of television piracy has increased significantly over the same period.
    In Spain, one study found piracy rates dropping by 4%, but some sectors saw an increase and MUSO report ranked Spain as the 4th highest country in the world for piracy ranking, despite the existence of website blocking.
    The ineffectiveness of Pirate Bay blocking led a Dutch court to lift a court ordered block in 2014, concluding “the block is not justified and will no longer be enforced.”
    A 2015 European Commission sponsored study that tracked the effect of shutting down a popular German video streaming site found only short-lived reductions in piracy levels as users gravitated to other sources.
    The ineffectiveness of website blocking was perhaps best illustrated by an example from the MUSO report relied upon by the Bell coalition. Putlocker.is, which is identified by MUSO as sample streaming site, is on the blocklist in both Australia and the UK (both established through court rulings, not administrative hearings). Despite being blocked in Australia and the UK, SimilarWeb reports that site visits to Putlocker.is are greater in both Australia and the UK than in Canada. Canada is also declining faster as a traffic source than Australia, the UK, and the United States.

    Site blocking is touted by the Bell coalition as a proverbial silver bullet to its piracy concerns. The case against the Bell coalition proposal has already addressed the weak evidence on the state of Canadian piracy and its limited impact. Yet even if the piracy claims were taken at face value, studies from around the world indicate only limited impact from site blocking in the longer term. Given the many negative effects of site blocking (including over-blocking and the expansion to other areas), the risks far outweigh the benefits.

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    Section 2: Fundamental Freedoms

    Everyone has the following fundamental freedoms:

    • freedom of conscience and religion;
    • freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
    • freedom of peaceful assembly; and
    • freedom of association.
    [KIDWICKED]..;/

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    WOW man I wish that were true but in these days it's only a dream....SAD...they have us between the balls lol...
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