The Puck Drops Here: A Dynamic Site-Blocking Order Granted for the NHL Playoffs

In Rogers Media Inc., nine television networks who hold copyright in NHL games have successfully obtained a “dynamic” site-blocking order against unidentified operators of unauthorized streaming servers, an unprecedented Order in Canada. This Order leapfrogs off of the previously unprecedented “static” site-blocking order issued in Bell Media Inc v. GoldTV.Biz, [GoldTV], aff’d TekSavvy Solutions Inc v. Bell Media Inc [GoldTV FCA], leave to appeal to SCC refused.

Background

The static site-blocking Order in GoldTV required eleven Internet Service Providers to block a fixed list of websites and IP addresses, which list could be (and later was) varied by the Court. In contrast, the dynamic Order sought by the Plaintiffs in Rogers Media Inc. will require the ISPs to block IP addresses on a variable list, which will be generated and updated in real time during each 2022 NHL Playoffs game.

Here, the Plaintiffs argued that static site-blocking would not be sufficient “because the pirates have adopted new measures to avoid detection and defeat site blocking, including moving their infringing content from site to site on a regular basis.” In their view, “Court approval would be impossible prior to each new blocking step because these efforts need to happen in real time in order to be effective.”

Balancing the Convenience of Dynamic-Site Blocking

This decision is notable not only for granting the second site-blocking Order in Canada, and for allowing dynamic site-blocking, but also for the Court’s approach to the balance of convenience.

The Court applied the RJR Macdonald test, modified by Canadian Broadcasting Corp for a mandatory interlocutory injunction:

• the moving party has a strong prima facie case;
• it will suffer irreparable harm if the injunction is not granted; and
• the balance of convenience favours granting the injunction.

The Court also considered factors from UK jurisprudence, adopted in GoldTV and GoldTV FCA, for assessing whether to grant a site-blocking order: necessity, effectiveness, dissuasiveness, complexity and cost, barriers to legitimate use or trade, fairness, substitution, and safeguards.

While the Court was satisfied the balance of convenience weighed in favour of the Plaintiffs (based on the strong prima facie case that the unknown Defendants are engaging in ongoing and flagrant breach of their copyright, and the irreparable harm of losing actual or potential subscribers), the Court crafted the Order to address many of the ISPs’ and the Intervenors’ concerns.

Capacity to Comply: The ISPs argued, for example, they could not block an unknown magnitude of IP addresses, in a time-sensitive manner, without any ability to verify the unlawful activity, while assuming the potential liability (and/or customer aggravation) for any wrongfully blocked sites.

Although satisfied the ISPs had the technical capacity to comply with the Order, each ISP would only be required to block the IP addresses to the extent of its “current capacity”, or to any increased capacity that it may acquire. The Order also requires the Plaintiff to indemnify the ISPs for reasonable costs of implementation up to $50,000 and for any liability incurred as a result of compliance.

Limited Scope and Duration: The Order’s limitation to the 2022 NHL Playoffs also influenced the balance of convenience. Justice Pentney took judicial notice that the playoffs feature less games per day than the regular season, with a reduced number of games after each round of elimination.

Independent Assessment of Implementation: The Court also considered submissions from the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic. Among concerns about net neutrality, notice-and-takedown, telecom competition, and the freedom of expression, CIPPIC emphasized the proprietary techniques employed by the Plaintiffs’ agent largely rely on automated tools: “In many cases, the IP addresses for the listed streaming services would be identified and listed without any opportunity for human intervention at all.” CIPPIC pointed to the lack of independent evidence as to the accuracy or reliability of these monitoring tools.

The Court agreed and ordered the Plaintiffs to engage an independent, third-party expert to assess the implementation of the Order. The ISPs would also have input in the selection of this expert.

Conclusion

Overall, this Order was a limited but important score for holders of copyright in content streamed online. The reports generated from this dynamic site-blocking experiment will likely inform the Courts’ approach to copyright enforcement on the Internet going forward, including the interrelated issues raised in this decision of fair judicial procedure, net neutrality, notice-and-takedown, telecom competition, freedom of expression, and automation.

A copy of the decision can be found here.