CIRA opposes ISP-level website blocking in “all but extreme” circumstances

The Canadian Internet Registration Authority (CIRA) is opposing internet service providers (ISPs) being allowed to unilaterally block websites from users in the name of copyright protection -- unless absolutely necessary -- saying a government proposal to do just that would “violate the principles of net neutrality that underwrite a free and open internet.” CIRA -- a not-for-profit organization that manages the .CA top-level domain -- submitted its comments on the matter to the federal government after it launched the Modern Copyright Framework for Online Intermediaries consultation in April. “CIRA has long championed the principles of an open internet… and is opposed to impingements on it, such as what might occur with site blocking at the ISP level,” the organization wrote in its report released on Tuesday. “Under the principle of net neutrality, the content of internet communications are not controlled or interfered with by intermediaries except in extraordinary circumstances without a reasonable alternative to achieve a pressing outcome.” CIRA also noted that the government’s policy paper, and the Copyright Act, have no definition for “online intermediary” which makes it “unclear” which actors its proposed regulations would aim to capture. The government consultation is part of a package of government efforts to update Canada’s telecom regulations: a revised Broadcasting Act, the development of a legal framework for online harms, news media remuneration, and copyright reform. In the government’s policy paper, one of the options for reform of the Copyright Act is to provide “expressly for injunctions against intermediaries to prevent or stop online copyright infringement facilitated by their services even where they are not themselves liable for it.” The injunctions could be available through a court process and the specific relief would include site blocking/de-indexing orders to disable access to infringing content, takedown orders to remove content, and stay-down orders to prevent or stop infringing activity. According to CIRA, the only times site blocking should be considered is: in the event that other “reasonable remedies” have proven ineffective; if a site’s location and locus of control is outside of Canada and therefore “beyond the reach of direct enforcement;” and if an impartial third party rules that it is the least harmful “to the quality, efficiency, and security and stability of the internet as a telecommunications network.” Last week, the Federal Court of Appeal upheld an unprecedented decision and allowed the first-ever site-blocking court order to stand, which CIRA called a “flawed approach” in its consultation document. The site blocking order -- requiring some internet service providers (ISPs) to block an anonymously-operated “pirate IPTV” service known as GoldTV -- was originally sought by a consortium of rights-holding companies and granted in November 2019. “The major flaw in the GoldTV approach is that a court has granted an injunction, not as a last resort, but as a first resort,” CIRA wrote. “Moreover, it has done so in a context where there is evidence of Canadian operators and information potentially available from Canadian entities, and from financial intermediaries, and whose efficacy or availability were not first tested by the court.” Its consultation paper also noted that site blocking may only be a “partial remedy” for copyright infringement “as it is easily circumvented” by obtaining a new domain name, using a commercial virtual private network (VPN) service, or alternate public Domain Name System (DNS) resolver which does not filter out the blocked site. CIRA said it agrees that statutory guidance is needed for courts to interpret the appropriateness of site blocking remedies for rights-holders and recommends “developing a logical and hierarchical referral path of intermediaries that are best suited to address the infringing content.” For example, according to CIRA, instead of using site blocking as a “first resort” in the case of GoldTV, the plaintiffs could have first sought out an injunction or Norwich Order, which would compel a third party to disclose information, with the content hosts, the domain name registrars, or payment processors. “Given the limitations of site blocking, the proposed statutory guidelines should make it clear that a website blocking order cannot be issued unless the copyright owner has established a prima facie case of commercial scale infringement, they have failed to secure redress from the website owner, and efforts to have the hosting provider remove the content have been unsuccessful,” CIRA wrote. CIRA also recommended further study by the government as “DNS operators, including domain name registrars and registries, as well as public DNS resolver operators are not contemplated by the consultation.” According to CIRA, website blocking remedies are achieved by utilizing intervention points within the DNS. “Consulting on website blocking without understanding the DNS is like studying the behavior of the tides without understanding the patterns of the moon,” it stated. - Reporting by Jenna Cocullo at jcocullo@thewirereport.ca and editing by Hannah Daley at hdaley@thewirereport.ca

CIRA opposes ISP-level website blocking in “all but extreme” circumstances

News | 06/01/2021 6:13 pm EDT

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