Telus was not a charter member of the Bell website blocking coalition, but there was never much doubt that the last of the big incumbents would side with the application. Most of the independent and smaller telecom companies have opposed the proposal (and even the Canadian Wireless Telecommunications Association cannot bring itself to state that it supports the plan), but Canada is not known for competition among the big incumbents and this issue was no different. Indeed, the Telus submission supports the application, but relies on remarkably weak and somewhat head-scratching analysis to arrive at its conclusion that the proposal meets the necessary legal standards.
It starts by arguing that there is no need for copyright expertise to run a copyright blocking system. How does it arrive at that conclusion? It maintains that the blocking will be so obvious, that expertise simply won’t be needed. Instead, it thinks that this is solely a broadcast and telecom issue (the fact that it acknowledges the broadcast aspect of blocking is consistent with arguments that the application should be dismissed under the Telecommunications Act):
Copyright law expertise is not what is required to implement the proposed regime. What the FairPlay Application really calls on the Commission to do is balance the interests of many stakeholders in the telecommunications and broadcasting sectors. Specifically, the Commission is being asked to determine on a case by case basis whether blocking a website egregiously engaged in the illegal activity of online content piracy is warranted in the circumstances and should override the expectation of Canadians of a free and open Internet.
That view is wholly inconsistent with the experience in other jurisdictions, where copyright is a key part of a copyright blocking analysis. In fact, Telus’ view of copyright is particularly odd given a later discussion on procedural fairness that seeks to analogize website blocking to the U.S. DMCA notice-and-takedown system. It inaccurately describes the U.S. system as it tries to argue that the website blocking system is superior to the takedown system:
TELUS considers that the regime proposed by FairPlay Canada is superior to a U.S.-style “Notice and Takedown” regime. That regime, established under the U.S. Digital Millennium Copyright Act, enables rights-holders to force intermediaries such as search engines and website operators to remove allegedly infringing materials expeditiously.
This is wrong on several levels. The U.S. notice-and-takedown system does not force intermediaries to do anything. Intermediaries are free to ignore takedown requests (and many do – Wikipedia rejects the majority of requests it receives). The only thing the system does is provide intermediaries with a safe harbour from liability if they do not takedown the content. Telus simply misstates U.S. law. Even if it had accurately described the law, the comparison would still not work since Canada has rejected notice-and-takedown, the notice-and-takedown system includes a put-back mechanism not found in the site blocking approach, and while a content poster is free to re-post the content on another site under notice-and-takedown, a universally mandated block of a website will affect all Internet users.
Having bungled the copyright analysis, Telus then continues with a discussion on the implications for freedom of expression. Unlike the Bell coalition supporters that dismiss freedom of expression concerns (now finding themselves opposed by the U.N. Special Rapporteur for Freedom of Expression), Telus acknowledges that over-blocking could be an issue. The remedy? The CRTC can simply order an unblocking in such cases. While consistent with a company that over-blocked hundreds of sites in the Voices for Change case and today shrugs its shoulders at the incident, few freedom of expression scholars would be comforted with the proposed solution:
In TELUS’ view, the only legitimate concern in regards to freedom of expression and the website-blocking regime proposed by FairPlay Canada relates to the potential for “over-blocking”, where otherwise legitimate websites are inadvertently blocked in addition to copyright-infringing websites. This concern, however, could easily be addressed by the Commission, which could assess the potential for collateral damage in its decisions and impose any ex-post corrective remedies if necessary.
Telus rounds out its intervention with a review of net neutrality. It unsurprisingly argues there is no net neutrality issue, but its emphasis focuses on the fact that all ISPs would engage in website blocking. In its view, if everyone is doing it, there is no net neutrality issue:
The regime proposed in the FairPlay Application would not contravene any of the policies established in the decisions identified as forming part of Canada’s net neutrality code. All of these decisions relate to actions taken by individual ISPs affecting users’ access to specific destinations on the Internet, and none of them stand in the way of the Commission requiring all ISPs to implement a decision affecting specific websites.
I don’t believe universal blocking has the effect of magically transforming a violation of fundamental net neutrality principles. As for the argument that net neutrality only applies to lawful content, the Telus application does not cite to any CRTC rules on point. The likely reason why? There are none.