Jack Valenti by Thomas Hawk (CC BY-NC 2.0) https://flic.kr/p/jiHqg

Jack Valenti by Thomas Hawk (CC BY-NC 2.0) https://flic.kr/p/jiHqg

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Site Blocking, The Sequel: After Telling Courts They Can Issue De-Indexing or Blocking Orders, Movie Industry Calls for More in Copyright Act

Representatives of the motion picture association appeared before the Standing Committee on Industry, Science and Technology this week as part of the copyright review and called on the government to ensure the law permits site blocking and search result de-indexing rules to address piracy concerns. The representatives, who acknowledged under questioning from Liberal MP David Graham that the Motion Picture Association of America (MPAA) and Motion Picture Association Canada (MPAC) are the same organization, also argued to increased liability for Internet intermediaries.

The MPAA/MPAC called for the following reform:

allow rights holders to obtain injunctive relief against online intermediary service providers. Internet intermediaries that facilitate access to illegal content are best-placed to reduce the harm caused by online piracy. This principle has been long recognized throughout Europe where Article 8.3 of the EU copyright directive has provided the foundation for copyright owners to obtain injunctive relief against intermediaries whose services are used by third-parties to infringe copyright. Building upon precedents that already exist in Canada in the physical world the act should be amended to expressly allow copyright owners to obtain injunctions, including site-blocking and de-indexing orders, against intermediaries whose services are used to infringe copyright.

Article 8.3 of the EU Copyright directive states:

Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.

Lobbying for an explicit site blocking and de-indexing injunction provision is presumably designed as a back-up to the site blocking proposal currently before the CRTC. Yet the reality is that Canadian law already provides for injunctive relief in appropriate circumstances with the Supreme Court of Canada’s Equustek decision one of the more recent manifestations of courts issuing orders to non-parties in support of intellectual property rights. Indeed, the MPAA/MPAC’s global association intervened in that case, where it argued:

Canadian courts have equitable jurisdiction to grant ancillary orders against non-parties to give effect to existing orders. This authority is not new, and it is not limited to persons interacting face-to-face or businesses operating in bricks-and-mortar shops. This authority also applies to the internet, provided that the court has jurisdiction in respect of the relevant parties…Canadian courts have jurisdiction to grant equitable relief to enforce orders concerning unlawful activity online, including by enlisting intermediaries’ assistance to curtail wrongdoers’ attempts to circumvent the rule of law.

In other words, the MPAA/MPAC has previously argued before the Supreme Court that Canadian courts already have the power to issue injunctions that could include site blocking or site de-indexing. There is no guarantee that courts will issue such an injunction – courts around the world have consistently identified the challenge of balancing protection of intellectual property rights with the implications of site blocking on freedom of expression – but a comprehensive, impartial court review with full due process is precisely what should be required before the power of the law is used to block access to content on the Internet or require the removal of search results. That is one reason the Bell coalition site blocking proposal is so problematic and why the movie industry’s latest call for additional site blocking injunction rules in the Copyright Act are, by its own admission, unnecessary.

36 Comments

  1. In Canada, unlike in the United States for example, corporations do not have a recognized right to “freedom of expression.” A business, a company, a corporation, does not have “free speech” rights the way a citizen, an individual does. Thus it is impossible, for example, to restrict tobacco advertising in the USA on the grounds of public health.

    Disseminating pirated copyright material on a torrent site, one moreover usually located offshore, is not an act protected by any notion of Canadian freedom of expression rights. Libel is one limitation we place on freedom of expression: harming a person’s reputation through false and malicious comments. To take the next step and state that the systematic theft of a Canadian creator’s intellectual property is also subject to restriction and is not protected by our Charter freedom of expression rights is, in the current climate of rampant and growing piracy, the ease with which it is carried out online and the difficulty of stopping it by other means, is entirely logical and consistent with Canadian values and practices. Few people argue the right of neo-Nazis to march through the streets of Canadian citizens chanting hate slogans: why are Canadian professors of law arguing for the right to steal my work? We restrict the foods and medicines imported into the country; we restrict the sale of imported baby toys deemed unsafe; but we do not restrict the wholesale theft of Canadian creators’ intellectual property by mostly offshore sites, otherwise out of reach, on Canadian Internet services to which we all pay a steep monthly fee. I’ve I’m going to pay Rogers so much (far too much) per month for their service, the least they can do is prevent my neighbours from downloading my work using the same service.

    And having legal recourse through the courts is not the same as having legal recourse through an administrative body like the CRTC. Do you know how much it costs in legal fees to obtain an injunction? For the site to show up somewhere else under a different name, requiring a new injunction. Take them off the airwaves, just like hate speech. We’re in the midst of a widespread attack on the fundamental human right of Canadian creators to earn a living from their work.

    • As usual, everything you say hinges on the idea that censorship only affects infringement. The reality is very different. In countries where censorship is used in the so-called “war on piracy”, censorship of legitimate online speech is rampant.

      In the US, the DMCA is notorious for the silencing of criticism and perfectly legal content.

      In the UK, there are countless cases where perfectly legal websites have been blocked due to fictitious copyright infringement. It even got to the point where The Telegraph got censored.

      Article 13 in Europe has been universally blasted as an affront to free speech because there is no adequate system of recourse and everyone knows that it will lead to even more mass censorship.

      I understand that major foreign multinational corporations hate human rights and free speech (it gets in the way of their profits), but as a Canadian citizen, I feel it is my duty to do my part to help defend human rights in this country. Repeating the intentional and blatent false narrative that this is just about blocking pirate websites is not going to change that.

  2. Bull crap. I have a human right to earn a living and not have my work stolen by pirates. I don’t like Bell, but you’re telling me they’re part of an international fascist conspiracy to trample on your freedom of expression? You give the bland suits at Bell too much credit, in a sense. They’re in it for money, period. I applaud what they’re doing because I can grab onto their tailcoats and have access to copyright enforcement I could otherwise never afford. There are real threats to freedom of expression in this world. Yes of course multinational corporations are against free speech when it’s workers in Guatemala trying to organize, but you think they care about your little blog? Get real. You libertarians are always pulling out the most far-fetched conspiracy theories.

    • > I have a human right to earn a living and not have my work stolen by pirates.

      When the Somali pirates come knocking to ransack your cargo vessel, let me know.

      > I don’t like Bell, but you’re telling me they’re part of an international fascist conspiracy to trample on your freedom of expression?

      Man, I just read Drew’s comment, and I can totally see where you got that conclusion… directly from your delusional mind.

      Actually, in fact, Bell Canada is now part of a MPAA-related consortium, so actually it does have connections to an international organization notorious for pushing draconian legislation.

      > They’re in it for money, period. I applaud what they’re doing because I can grab onto their tailcoats and have access to copyright enforcement I could otherwise never afford.

      So the rest of us must suffer through overreaching and overbearing legislation so you can prop up your apparent failure to make a living? Go pound sand.

      > There are real threats to freedom of expression in this world. Yes of course multinational corporations are against free speech when it’s workers in Guatemala trying to organize, but you think they care about your little blog? Get real. You libertarians are always pulling out the most far-fetched conspiracy theories.

      Actually what Drew has said is entirely true and is backed up by facts. But I get it George – you’re trying to this new “if you don’t like these stupid copyright initiatives then you are right wing” angle. Problem is, these kinds of protests existed in 2010 and earlier, protesting the same overreaching copyright shit when the Harper conservatives were proposing it. Amazingly, opposition to this crap ISN’T some recent “right-wing” phenomena like you repeatedly try present in your comments.

    • > Yes of course multinational corporations are against free speech when it’s workers in Guatemala trying to organize, but you think they care about your little blog? Get real.

      I’ve already been censored: https://www.blocked.org.uk/site/http://www.freezenet.ca

  3. Another thing. The Telegraph was shut down in the UK? I know nothing about it. That’s a travesty, whether you like the Telegraph or not. But it was shut down by a complaints-based blocking system? I doubt it. What are the chances someone is going to lay a complaint against the Toronto Star, that the CRTC examines the complaint and finds it prima facie valid, that the CRTC sends a letter to the Star asking for an explanation and threatening blocking if the explanation is inadequate, that The Star ignores the letter or fails to persuade the CRTC is not a pirate site, and that the CRTC pulls the plug on the Star website?

    The chances are nil, zip, nada, not in a million years all that would play out like that. You’re fear mongering, distorting facts, living in a complete fantasy world, in which pirates are OK and blocking them will supposedly be the end of civilization as we know it. You should try to find a higher class of people to champion.

    • Mr Sock Puppet stated: “The chances are nil, zip, nada, not in a million years all that would play out like that.”

      Pot, meet kettle. You’d need strong resistance to cognitive dissonnance to stay blind to all the real world examples on how this plays out every time.

      • Show me an example of a newspaper like the Toronto Star being shut down by a complaints process such as that proposed to the CRTC. And, just to be clear, evidence that the newspaper you cite as evidence actually wasn’t defiantly breaking copyright.

      • I can see I have to spell out every word for you. A government complaint and review process. Not unmonitored blocking by ISPs.

        Do you think there are no innocent people charged with crimes? Some who even go to prison? A tragedy yes, horrible. But is the solution to disband the police and the courts? I don’t think so. Why do people want more freedom to do what they want on the Internet than they can in real life – break the law, for example?

        • So, let’s review the debate up to this point:

          “This censorship will do no harm.”
          “There’s already censorship.”
          “I don’t believe you, you have no proof.”
          “Here’s your proof.”
          “That doesn’t count you poopy head.”
          “Here’s further proof.”
          “That still doesn’t count. You’re just being stupid!”
          “Fine, here’s further proof.”
          “LALALA!!! Right wing jerk!!! I can’t hear you!!!”

          Man, whoever is paying you to write this needs to demand a refund.

          • Make as much noise as you like. I asked for evidence of a government-reviewed blocking of a paper such as The Telegraph or The Toronto Star, you sent me a link to 8 million abusive takedown notices. I asked again, you sent me a link to report of an ISP blocking a site. I asked a third time, you la-la-la-ed yourself. Still no evidence of a system such as that proposed to the CRTC blocking legitimate sites.

  4. > Another thing. The Telegraph was shut down in the UK? I know nothing about it. That’s a travesty, whether you like the Telegraph or not. But it was shut down by a complaints-based blocking system? I doubt it.

    So you bring up an example you know nothing about and try to come to a conclusion on said-example despite your complete ignorance. Amazing.

    > “What are the chances someone is going to lay a complaint against the Toronto Star, that the CRTC examines the complaint and finds it prima facie valid, that the CRTC sends a letter to the Star asking for an explanation and threatening blocking if the explanation is inadequate, that The Star ignores the letter or fails to persuade the CRTC is not a pirate site, and that the CRTC pulls the plug on the Star website?”

    Ah I see. So your attempt to address the critics is to say “What are the chances of this specific genre of website being mistakely shut down?” Actually, quite a lot, considering in Russia blocking of one service ending up blocking up many unrelated services due to them sharing infrastructure. You wouldn’t want to copy Russian legislation would you?

    > “The chances are nil, zip, nada, not in a million years all that would play out like that. You’re fear mongering, distorting facts, living in a complete fantasy world, in which pirates are OK and blocking them will supposedly be the end of civilization as we know it. You should try to find a higher class of people to champion.”

    The example are many, easy to find, happened within the past decade. The rest of this paragraph is projection combined with strawmen arguments. In other words, typically vapid George comments.

    Hey George, BTW, as an artist I assume you have some presence on social media, and this blog’s comment section can get annoying to follow sometimes. Any chance we can commune over Twitter?

    • Not a chance.

      • Of course not. You come here to troll and if you had your own platform then that wouldn’t work so well. Seriously, you must be able to understand that the internet is for everybody – and that includes you. You are very welcome to run a blog for the world to read. It will cost you nothing. As I’ve mentioned before you’re operating anonymously and there is no reason for that here. Stand up and be counted if it’s that important to you. Also, if you really do want to promote yourself and other popular artists why are not putting a link in your name here?

        • Address the issues I raise.

        • And you expect me to hang out with some creep whose response to me wanting my work not to be pirated is, I quote, “go pound sand”?

          • LOL, so exchanging tweets on Twitter = “hanging out” in your mind. Any other out of touch statements? Is the Internet a series of tubes to you too?

          • Uh, you asked me in a seemingly pleasant tone to chat somewhere else, just after saying “go pound sand” when I complained people like you pirate my work. That’s like mugging me in an alley and then inviting me into the corner bar for a drink with my own money – but only some of it.

        • > “Also, if you really do want to promote yourself and other popular artists why are not putting a link in your name here?”

          He probably has nothing to offer. I know I personally do my part to help promote artists – especially smaller ones through my music reviews: https://www.freezenet.ca/reviews/music-reviews/

          Having produced music in the past with a pretty solid success track record myself, I’ve obtained a fair amount of knowledge what it’s like to be an artist. One of the myths out there that drives me crazy is that all artists out there are all about the, “OMG, yer takin’ mah copyrightz!!!eleventyoneone” I know a lot of different artists and I can tell you that opinion is far more diverse and widespread.

          Generally speaking, I find that artists who are hyper defensive of copyright don’t generally tend to last more than a few years because they often wind up shooting themselves in the foot. They get in their mind that what they offer is highly coveted and highly valuable regardless of what the actual value is. Sometimes this thinking stems from the fact that they know that their work isn’t all that original and they don’t want others to do what they did. Sometime’s, it’s out of the fact that they have a fear that their work is actually not all that valuable and by creating artificial scarcity, people will flock to them because they hold all the cards and customers will somehow want a piece of the action.

          What ends up happening a lot of the time is the focus shifts away from creating content or further refining their creation skills (what artists should be focused on a good chunk of the time) and more on defending copyright, lawyering up, declaring war on them nasty pirates, etc. Unless you are the top artist backed by a multinational corporation, you end up creating less content and giving people less incentive to even want your work in the first place.

          Believe me, it is much harder to support an artist that, say, produced an album 9 years ago, isn’t all that well known, and hasn’t really produced anything since. For 99.9% of the time, the problem for artists is obscurity. A great tool for overcoming that problem is churning out something new on some form of regular basis. This keeps people interested and helps you gain a following over time. Additionally, word of mouth, getting your name out there in some way, and (gasp!) allowing for some piracy can actually help you get your name out there in the long run.

          So, the idea of censoring the Internet, at least from my artist perspective, is about the last thing your average artist wants (not the big name celebrity artist, the average artist) because it takes away some very powerful promotional tools an artist can easily utilize to help build that career.

          Yes, not every artist will agree with my perspective, but I know there are artists that will.

          • The usual bull crap. “If you object to your work being pirated, it must be because no one wants to buy it.” (It’s funny, pirates always say “I would never buy that crap,” and yet they love to pirate it. You either like it or you don’t, no?) “Piracy helps exposure.” I have lots of exposure. I’m very well known. No more needed thanks. My work is available and affordable but people prefer to pirate it. I know, I hang out on their torrent sites and watch the chat.

        • Of course there is reason for anonymity when standing up to pirates. Think a moment for a change.

          This whole place reeks of the worst kind of groupthink. You people really need to open your minds a little, not to mention put yourself in the other person’s shoes.

        • Ole Juul, I don’t see you clamouring for Eric L’s real name.

          And no, expressing a different point of view in a sea of groupthink is not trolling. Try, once again, addressing the issues I raise.

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  6. Pingback: MPAA Pushes for Further Internet Censorship in Canada

  7. https://www.thestar.com/news/gta/2018/06/28/police-seize-thousands-of-suspected-counterfeit-goods-from-pacific-mall.html

    Police say officers seized items that include clothing, handbags and cellphone accessories, as well as cash.

    No charges have been laid, but police say the investigation continues and more search warrants will be carried out at related warehouses.

    They say retailers could face charges under the Copyright Act, which bring fines of up to a million dollars and up to five years in prison.

    • Physical property, intellectual property, it’s all the same under the law.

    • If the state can do this, send the men in uniforms and boots into a store to seize handbags without criminal charges yet, why can’t they take down a torrent site?

      • because torrent files are not movie/music/program files. did the cops seize the instructions on where to buy thread and fabrics for the handbags in question?

        • Another moronic reply. Torrent sites are there to steal my work in its complete, finished state. An idiotic analogy.

          • it is telling that you refuse to engage civilly. torrent files do not contain any of your work. unless you make torrent files as art?

            my “idiotic” analogy is correct, even if you do not like it.

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