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Canadian broadcasters given ‘unprecedented’ ability to force internet providers to block illegal NHL streams

The new order raises ‘novel and complex’ legal issues, namely on how it could impact ‘net neutrality’ and freedom of expression, the judge acknowledged

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OTTAWA — A Federal Court judge has granted three broadcasters the “unprecedented” ability to require all major Canadian internet providers to block access in real-time to web pages illegally streaming National Hockey League games for the rest of the season.

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The new ruling is about to make it much, much harder for Canadians without a cable subscription to watch the rest of the NHL playoffs on illegal streaming websites.

In a May 27 ruling, the Federal Court granted plaintiffs Rogers, Bell and Quebecor — who hold exclusive NHL broadcasting rights in Canada — a never-before-used tool to fight websites who steal their streams called a “dynamic site blocking” order.

In short, the court granted them the temporary ability to force all other major internet service providers (ISP) to block access in real time to web pages hosting unauthorized NHL streams during games until the end of the current Stanley Cup playoffs, likely by the end of June.

The order stems from a perennial issue plaguing major broadcasters who pay millions of dollars to the NHL for exclusive broadcasting rights for games in Canada: illegal online streams run by “pirates” and watched by thousands of people, who are not paying for a subscription to authorized streaming or cable providers.

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According to the ruling, a specialized internet monitoring company called Friend MTS (FMTS) hired by Rogers found 53,433 “incidents” where streaming servers provided unauthorized NHL games between Jan. 30, and May 30, 2021.

The ruling notes that other ISPs, namely Telus, Cogeco, TekSavvy and Distribute, either raised concerns or strongly opposed the emergency application, arguing it would namely “impose undue risks, practical difficulties and costs” on them.

Judge William Pentney also acknowledged in the 117-page ruling that the new order is “unprecedented in Canada” and raises “novel and complex” legal issues, namely on how it could impact “net neutrality” and freedom of expression.

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But he ultimately sided with the three plaintiffs, finding that they suffer “irreparable harm” by ongoing piracy of their NHL broadcasts and that no other means exists to help put an end to it.

He also said impacts on freedom of expression will be “limited” because of the multiple “restraints” built into the order.

Both the United Kingdom and the European Intellectual Property Office found dynamic orders were successful in curbing piracy, the judge said.

The judge found that the “vast majority” of pirates’ activities are done outside of Canada and they operate their businesses in ways designed to “make it unrealistic to stop them” using traditional copyright infringement legal tools.

The case built off a 2019 Federal Court ruling granting Bell a “static” site blocking order that listed specific websites that were blocked because of NHL right infringements. Any additions to the list needed to be done by the court.

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But the broadcasters found that illegal streamers simply moved their stream as soon as they were found, sometimes in the middle of a hockey game, making the static order largely ineffective.

“Despite the steps they have taken thus far, the piracy continues and there are not any further remedies that are likely to be effective to stop it,” Pentney wrote.

“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. 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,” reads the ruling.

No other means exists to help put an end to it

The “strictly targeted” list of internet addresses to be blocked will be built by FMTS, who will update with new pirated streaming pages as they appear in real-time during NHL games.

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Internet service providers will have to block the web pages on FMTS’ first list within 30 minutes of the start of a game, and then update their blocked pages with an updated list at least every hour until the end of a hockey match. They will then be allowed to unblock any impacted websites.

To address his concerns about FMTS’ “untested” techniques and prevent “over-blocking,” the judge ordered the plaintiffs to pay for an independent expert to oversee which websites are blocked (and report a list back to the court), verify if the order is properly enforced and if it was effective in curbing piracy.

Ultimately, Pentney said in his ruling, the oversight and safeguard measures he built into the order will result in “under-blocking” of infringing pages, to “avoid affecting benign traffic by innocent individuals.”

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The judge also ruled that Bell, Rogers and Quebecor would pay up to $50,000 to other impacted ISPs to cover the costs of implementing the order, who would not be required to invest any of their money to increase capacity to block websites on the fly.

Telus and Cogeco did not respond to requests for comment by deadline, and TekSavvy declined to comment.

In a joint statement through lawyer Guillaume Lavoie Ste-Marie, Rogers, Bell and Quebecor said they welcomed the court’s ruling.

“This is the first time a dynamic site blocking order has been issued in Canada and is an important precedent for industry members who own copyright for live broadcasts of NHL games in Canada and other events,” he told National Post by email.

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