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Thread: Federal Court of Canada issues unprecedented ruling ordering ISPs to block piracy ser

  1. #31
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    Quote Originally Posted by dnasp002 View Post
    I don't know but I think TekSavvy has a pretty good argument

    even the CRTC rejected the idea of forcing ISPs to block the content


    I would submit that characterization in the article regarding the the CRTC rejected the idea of forcing ISPs to block content is quite misleading. In fact the CRTC does have the authority to authorize an ISP to block a website. It was the CRTC's opinion it lacked jurisdiction in the area of Copyright infringement. The Court did not disagree with the CRTC's opinion in the regard in that they did not feel they had right enter into the Copyright Act law if the language of that law did not offer that remedy.


    However that is what Courts are for. They decide on these issues where bodies say we can't or not sure we can, they defer to the Courts to decide who certainly do have the authority to decide. In this case, right or wrong, took in the CRTC and the telecommunications Act and went with the enforcement of the Copyright act by acting the ISP blocking to GoldTv






    [27] Teksavvy submits that this motion must be considered in the broader context of the Canadian debate on site-blocking that is occurring before Parliament and the CRTC. When considered in this context, it argues the Court should decline to exercise any jurisdiction or discretion it may have to grant a site-blocking order.

    [28] First, TekSavvy argues that the remedies available to a copyright holder set out in the Copyright Act are exhaustive and do not include site-blocking orders. TekSavvy further notes that in introducing reforms to the Copyright Act in 2012 Parliament considered but chose not to provide for a site-blocking regime. It submits that the Federal Court should not now provide a remedy to the Plaintiffs that Parliament declined to make expressly available in legislation. The argument is not persuasive.

    [29] Parliament’s choice not to adopt a site-blocking regime does not equate to Parliament prohibiting this Court from exercising its equitable jurisdiction to issue a site-blocking order. Furthermore, subsection 34(1) of the Copyright Act recognizes that, subject to that Act, a copyright owner is “entitled to all remedies by way of injunction […] that are or may be conferred by law for the infringement of a right”. This includes the right to seek relief against a non-party in circumstances where that non-party facilitates, albeit innocently, the harm being complained of (Equustek at para 31).

    [30] This broadly stated entitlement to injunctive relief is not consistent with Teksavvy’s view that Parliament’s failure to legislate a site-blocking regime equates to an implicit intent to limit the availability of a similar remedy before the courts.

    [31] Teksavvy further submits that the sole issue before the Court on this motion is a proposed site-blocking order against the Third Party Respondents, an issue that is discrete from the underlying action relating to the alleged copyright infringement. Teksavvy submits that site-blocking is a matter that falls within the CRTC’s mandate as set out in the Telecommunications Act and the CRTC has, in its decisions and policy documents, held that site-blocking is only warranted in exceptional circumstances. Teksavvy points to sections 7 and 36 of the Telecommunications Act to argue that the granting of the order would (1) usurp the CRTC’s role in ruling on the appropriateness of site-blocking, and (2) supplant the CRTC’s role in deciding which, if any “exceptional circumstances” warrant site-blocking in furtherance of Canadian telecommunications policy objectives as set out at section 7 of the Telecommunications Act.

    [32] In the course of oral submissions Teksavvy requested and was granted leave to provide supplementary written submissions on section 36 of the Telecommunications Act. The Plaintiffs, in turn, have filed supplementary written submissions in reply.

    [33] Section 36 provides the CRTC with the authority to authorize an ISP to block a website:
    Content of messages

    36 Except where the Commission approves otherwise, a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public.



    [34] In a 2018 decision the CRTC addressed the reach of section 36, in the context of considering an application from a group referred to as the FairPlay Coalition. The FairPlay Coalition requested that the CRTC create a regime that would allow the CRTC to require ISPs to block access to websites and services engaged in copyright piracy. The CRTC concluded it lacked the jurisdiction to implement the proposed regime and denied the FairPlay Coalition’s application. In doing so, in the Telecom Decision 2018-384 [FairPlay decision] at para 67, it considered the scope of the power granted to it by section 36:
    67. Section 36 of the Telecommunications Act limits the ability of carriers to control the content of messages carried over their networks without prior Commission authorization. While this section gives the Commission the explicit power to authorize an ISP to block a website, the proposed regime would go further and require such blocking pursuant to a Commission order. Because section 36 confers authorizing power and not a mandatory power, the power to mandate blocking must be found elsewhere and must relate to the subject matter that is clearly within the Commission’s jurisdiction under the Telecommunications Act. [Emphasis added.]

    [35] In the FairPlay decision the CRTC also concluded it possessed no jurisdiction over matters of copyright infringement. The CRTC held that Parliament had intended the Copyright Act to be an exhaustive regime and that clear language would be required to establish that rights and remedies related to copyright were available under the Telecommunications Act (FairPlay decision at paras 60, 61 and 65).

    [36] I have considered the jurisprudence cited by Teksavvy in its supplementary written submissions (MTS Allstream v TELUS Communications Company, 2009 ABCA 372 (CanLII) at paras 20, 23, 28–29, and 32; Bazos v Bell Media Inc, 2018 ONSC 6146 (CanLII) at paras 66–72; Iris Technologies Inc, et al v Telus Communications Company, 2019 ONSC 2502 (CanLII) at paras 30 and 33; Shaw Cablesystems (SMB) Ltd. et al v. MTS Communications Inc. et al., 2006 MBCA 29 (CanLII) at paras 52 and 54–55; Association canadienne des télécommunications sans fil c. Procureure générale du Québec, 2018 QCCS 3159 (CanLII) at para 119). As the Plaintiffs note, the jurisprudence Teksavvy relies upon is limited to situations where the essential character of the dispute in issue falls within the scope of the CRTC’s statutorily prescribed jurisdiction.

    [37] Teksavvy seeks to characterize the issue on this motion as one of site blocking only. I am not convinced the injunction remedy sought can be so simply divorced from the essential character of the underlying copyright infringement action.

    [38] Teksavvy has not argued that the CRTC erred in concluding it lacked jurisdiction in the area of copyright infringement. For the purposes of addressing the issues before me and absent argument to the contrary I accept the CRTC conclusion that Parliament intended the Copyright Act to be an exhaustive regime. Absent clear statutory language to the contrary, where the essential character of the dispute is one of copyright, remedies are to be found in the Copyright Act.

    [39] Teksavvy’s characterization of the relief sought as being discrete from the underlying copyright action is not persuasive and is at odds with the CRTC’s conclusions set out above. There is an absence of CRTC jurisdiction over the underlying copyright issues and an absence of authority to grant the type of relief being sought on this motion. On these facts one cannot conclude that the granting of the injunctive relief sought would in any manner usurp, supplant or erode the CRTC’s role under sections 7 or 36 of the Telecommunications Act.

    [40] In the course of the oral submissions counsel for Teksavvy also raised the issue of whether the Third Party Respondents would be required to seek section 36 approval from the CRTC prior to implementing a site-blocking order. Teksavvy did not pursue this argument in its supplementary written submissions.

    [41] Having concluded above that the Court may bind the Third Party Respondents in the exercise of its equitable jurisdiction, I agree with and adopt the Plaintiffs’ submissions in this regard. Section 36 of the Telecommunications Act cannot be interpreted or applied in a manner that would allow the CRTC to interfere with an order of the Court aimed at impeding further infringement of rights under the Copyright Act (Reference re Broadcasting Act SC 1991 (Canada), 2012 SCC 68 (CanLII) at paras 39 and 45).

    [42] In summary, the Court has jurisdiction to grant the relief sought. I am not convinced that any of the provisions of the Telecommunications Act, nor the fact that there is ongoing debate about the role of site blocking in Canada’s telecommunications regulatory regime, support the view that the Court should decline to exercise its discretion in this case.





    GS2

  2. #32
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    the CRTC admitted that they didn't have jurisdiction but then they went on to say

    62.
    The proper interpretation of sections 24 and 24.1 of the Telecommunications Act is also influenced by the fact that when Parliament amended the Copyright Act in 2012, it considered and rejected notice and take-down regimes similar to the proposed regime, in favour of a notice and notice regime. Interpreting sections 24 and 24.1 as giving the Commission the jurisdiction to mandate the proposed regime would conflict with the purpose and scheme of the Copyright Act

    63.
    There is also a clear conflict between the proposed regime and the ISP exemptions set out in paragraph 2.4(1)(b) and section 31.1 of the Copyright Act regarding the role that TSPs (such as ISPs) should play in enforcing the rights created by that Act. Paragraph 2.4(1)(b) expressly exempts persons who merely provide the means of telecommunication from responsibility for communicating copyrighted works. Section 31.1 exempts a number of network functions commonly carried out by ISPs (such as caching and hosting) from liability for copyright infringement. The proposed regime conflicts with the Copyright Act because it seeks to impose new copyright obligations and remedies on ISPs, while that Act specifically exempts entities that act as telecommunications conduits from responsibility for copyright enforcement.

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  4. #33
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    They seem to be saying that it should be left up to the ongoing parliamentary review of the Copyright Act, as well as the expert panel review of the Telecommunications Act and the Broadcasting Act.

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  6. #34
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    I think what you need to take into consideration that perhaps your not, is that Teksavvy presented that CRTC ruling with FairPlay in 2018 in its entirely as support for their position including the points you outlined ( 62 & 63 ) and were not persuaded by it. Perhaps the Appeals Court will be. I am not sure what they are saying but if they are saying it should be left up to the ongoing Parliament review of the Copyright Act as well as the expert panel review of the Telecommunications Act and the Broadcasting Act the Court did not agree. The Court summarize as in 42 they have the jurisdiction to grant the relief, that they were not just dealing with site blocking but dealing with an order of the Court aimed at impeding further infringement of rights under the Copyright Act


    The Plaintiffs brought their motion to Federal Court of Canada not to the CRTC perhaps thinking they could not get the relief they sought or that they were already in Federal Court with GoldTv so it was the proper venue to continue with.




    [37] Teksavvy seeks to characterize the issue on this motion as one of site blocking only. I am not convinced the injunction remedy sought can be so simply divorced from the essential character of the underlying copyright infringement action.

    [38] Teksavvy has not argued that the CRTC erred in concluding it lacked jurisdiction in the area of copyright infringement. For the purposes of addressing the issues before me and absent argument to the contrary I accept the CRTC conclusion that Parliament intended the Copyright Act to be an exhaustive regime. Absent clear statutory language to the contrary, where the essential character of the dispute is one of copyright, remedies are to be found in the Copyright Act.

    [39] Teksavvy’s characterization of the relief sought as being discrete from the underlying copyright action is not persuasive and is at odds with the CRTC’s conclusions set out above. There is an absence of CRTC jurisdiction over the underlying copyright issues and an absence of authority to grant the type of relief being sought on this motion. On these facts one cannot conclude that the granting of the injunctive relief sought would in any manner usurp, supplant or erode the CRTC’s role under sections 7 or 36 of the Telecommunications Act.

    [40] In the course of the oral submissions counsel for Teksavvy also raised the issue of whether the Third Party Respondents would be required to seek section 36 approval from the CRTC prior to implementing a site-blocking order. Teksavvy did not pursue this argument in its supplementary written submissions.

    [41] Having concluded above that the Court may bind the Third Party Respondents in the exercise of its equitable jurisdiction, I agree with and adopt the Plaintiffs’ submissions in this regard. Section 36 of the Telecommunications Act cannot be interpreted or applied in a manner that would allow the CRTC to interfere with an order of the Court aimed at impeding further infringement of rights under the Copyright Act (Reference re Broadcasting Act SC 1991 (Canada), 2012 SCC 68 (CanLII) at paras 39 and 45).

    [42] In summary, the Court has jurisdiction to grant the relief sought. I am not convinced that any of the provisions of the Telecommunications Act, nor the fact that there is ongoing debate about the role of site blocking in Canada’s telecommunications regulatory regime, support the view that the Court should decline to exercise its discretion in this case.


    Whether we agree or not the Court, being now the second Court has bought the irreparable harm argument which weighs likely heaving in the site blocking order.




    [68] As were my colleagues Justices Leblanc and Kane, I am satisfied that the Plaintiffs have established that irreparable harm will result if the injunction is not granted.




    GS2

  7. #35
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    the CRTC was clear that parliament didn't intend for the Copyright Act to allow for this type of draconian measure
    they were clear that the Copyright Act exempts ISPs from persecution for content on their networks

    what you have here is Federal Courts making laws rather than enforcing them

    I would argue the irreparable harm is to the public not to these corporations

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  9. #36
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    Its quite clear that the Court considered CRTC's opinions but the way more compelling part of what CRTC said is that they lacked the Jurisdiction, which the Court agreed. The Federal Court however does not lack the Jurisdiction, that is clear.


    There is an absence of CRTC jurisdiction over the underlying copyright issues and an absence of authority to grant the type of relief being sought on this motion. [42] In summary, the Court has jurisdiction to grant the relief sought.

    Federal courts specialize in certain areas including Copyright and has the power to review decisions of federal agencies and officials. What your arguing or suggesting is that CRTC was right and that this Court was wrong. That's up to the Appeals Court but the Court considered the CRTC's opinion, could have easily accepted it, would have been much easier for the Court, but did not.


    [35] In the FairPlay decision the CRTC also concluded it possessed no jurisdiction over matters of copyright infringement. The CRTC held that Parliament had intended the Copyright Act to be an exhaustive regime and that clear language would be required to establish that rights and remedies related to copyright were available under the Telecommunications Act (FairPlay decision at paras 60, 61 and 65)

    [36] I have considered the jurisprudence cited by Teksavvy in its supplementary written submissions (MTS Allstream v TELUS Communications Company, 2009 ABCA 372 (CanLII) at paras 20, 23, 28–29, and 32; Bazos v Bell Media Inc, 2018 ONSC 6146 (CanLII) at paras 66–72; Iris Technologies Inc, et al v Telus Communications Company, 2019 ONSC 2502 (CanLII) at paras 30 and 33; Shaw Cablesystems (SMB) Ltd. et al v. MTS Communications Inc. et al., 2006 MBCA 29 (CanLII) at paras 52 and 54–55; Association canadienne des télécommunications sans fil c. Procureure générale du Québec, 2018 QCCS 3159 (CanLII) at para 119). As the Plaintiffs note, the jurisprudence Teksavvy relies upon is limited to situations where the essential character of the dispute in issue falls within the scope of the CRTC’s statutorily prescribed jurisdiction.

    Federal Courts enforce laws. They are enforcing the Copyright Act and enforcing their own Court order that the defendants ignored. Their blocking order is not new law, its new enforcement with a authorizing a new remedi of enforcement of existing law.




    What is the irreparable harm the public would suffer by not being able to visit an unlawful website ( GoldTv ) ?




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  11. #37
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    Whenever the courts infringe on our charter rights I consider that irreparable harm. The slow erosion of our rights has to count for something.

    As for Teksavvy's right and choice to appeal. I applaud them and I agree with their stance.

    I believe the CRTC when they said that when Parliament amended the Copyright Act in 2012, it considered and rejected notice and take-down regimes similar to the proposed regime, in favour of a notice and notice regime.

    Why would they lie?

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    If Parliament didn't want the Copyright Act to be used in that way, why are the courts enforcing it that way ?

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    Quote Originally Posted by dnasp002 View Post
    Whenever the courts infringe on our charter rights I consider that irreparable harm. The slow erosion of our rights has to count for something.

    As for Teksavvy's right and choice to appeal. I applaud them and I agree with their stance.

    I believe the CRTC when they said that when Parliament amended the Copyright Act in 2012, it considered and rejected notice and take-down regimes similar to the proposed regime, in favour of a notice and notice regime.

    Why would they lie?

    I have never seen a Court whether its a lower Court or Canadian Supreme Court rule that our Charter Rights are being inflinged by not being able to access some illegal activity. I refer you to Canadians wanting to access US Sat signals whether through black market activity or even through Grey market activity where you pay for the US signal your Charter Rights did not apply. Trust me if there was anyone who was not happy with that decision it was myself who has a business, a Grey market business that I lost. Just trying to be practical but the appeals Court could see it your way or my way as merely commenting on a legal basis regardless how I feel.


    I really don't think it matters all that much what the CRTC said in 2012 because they said it was not in their Jurisdiction but it is in the Jurisdiction of thr Federal Court. No where has the Federal Court nor I suggested the CRTC has lied about anything. Its their opinion, its their interpretation what Parliament considered when it amended the Copyright Act. I have not seen the Parliamentary debates nor do I know if they were presented with this situation that the Federal Court is almost 8 years later. The Court has to weigh the concerns of all parties, they did, and concluded the balance favors the Plaintiffs.



    GS2

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    Quote Originally Posted by dnasp002 View Post
    If Parliament didn't want the Copyright Act to be used in that way, why are the courts enforcing it that way ?

    Well again that's an assumption on your part what Parliament wanted based on want the CRTC wrote. Do you think Parliament did not want enforcenment and protections for CopyRight holders.? Do you think Parliment did not want Courts to offer relief and remedies to Plaintiffs who came seeking it, currents ones that needs to address unique situations? What is the role of the Court? Or what do you think Parliment wanted that role to be?

    I know your not happy with the decision, been there done that. Lost my case all the way to the Supreme Court, a test case the way one Judge put it. I had to learn the hard way and it took a long time that the Court had to balance all sides including the public interest if there was any. Still think it was un fair to pay such a high price for a test case, unlucky because if not me would have been someone else who was unlucky.



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    Quote Originally Posted by dnasp002 View Post
    If Parliament didn't want the Copyright Act to be used in that way, why are the courts enforcing it that way ?

    Perhaps this can help you under the Court's position better on this. Not saying you have to agree but think they do explained it adequately.


    28] First, TekSavvy argues that the remedies available to a copyright holder set out in the Copyright Act are exhaustive and do not include site-blocking orders. TekSavvy further notes that in introducing reforms to the Copyright Act in 2012 Parliament considered but chose not to provide for a site-blocking regime. It submits that the Federal Court should not now provide a remedy to the Plaintiffs that Parliament declined to make expressly available in legislation. The argument is not persuasive.

    [29] Parliament’s choice not to adopt a site-blocking regime does not equate to Parliament prohibiting this Court from exercising its equitable jurisdiction to issue a site-blocking order. Furthermore, subsection 34(1) of the Copyright Act recognizes that, subject to that Act, a copyright owner is “entitled to all remedies by way of injunction […] that are or may be conferred by law for the infringement of a right”. This includes the right to seek relief against a non-party in circumstances where that non-party facilitates, albeit innocently, the harm being complained of (Equustek at para 31).

    [30] This broadly stated entitlement to injunctive relief is not consistent with Teksavvy’s view that Parliament’s failure to legislate a site-blocking regime equates to an implicit intent to limit the availability of a similar remedy before the courts.


    [31] Teksavvy further submits that the sole issue before the Court on this motion is a proposed site-blocking order against the Third Party Respondents, an issue that is discrete from the underlying action relating to the alleged copyright infringement. Teksavvy submits that site-blocking is a matter that falls within the CRTC’s mandate as set out in the Telecommunications Act and the CRTC has, in its decisions and policy documents, held that site-blocking is only warranted in exceptional circumstances. Teksavvy points to sections 7 and 36 of the Telecommunications Act to argue that the granting of the order would (1) usurp the CRTC’s role in ruling on the appropriateness of site-blocking, and (2) supplant the CRTC’s role in deciding which, if any “exceptional circumstances” warrant site-blocking in furtherance of Canadian telecommunications policy objectives as set out at section 7 of the Telecommunications Act.


    GS2

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