Cyber-Incidents,  Intellectual Property,  Litigation

Teksavvy Solutions and Bell Media, 2021FCA10

The Federal Court of Appeal confirmed a site blocking order that was touted as the “first ever” in Canada back in 2019. The Federal Court of Appeal is right. Courts should issue site blocking orders more often and on an interlocutory basis. IP defendants are routinely allowed to allege some bogus defenses left unresolved till trial and facilitating unfettered infringement in the meantime.

The order can be accessed here.

ISP-blocking should be available at an interim stage and even before. There should be a presumption in favor of blocking, to protect consumers, improve access to justice, or stifle the floodgates of litigation brought by powerful copyright holders, etc.

Moreover, the notice and notice system as opposed to notice and takedown is a total aberration and at times it looks like it is drafted in such a way to precisely render the process inefficient. Notice and Notice consists of finger-pointing in a chain reaction. The goal is to dilute service providers’ liability to a maximum and eventually pin all piracy on a handful of individual consumers, such as teenagers and grandmas whose confidential information is wrongfully sent to powerful copyright holders (i.e. movie studios) for the purpose of extorting settlements. The more vulnerable the consumer, the easier abuse is committed by powerful copyright holders.

ISP blocking eradicates piracy from the source. No individual consumer should pay for prevalent piracy. Those who give consumers access to pirate sites are the only ones to blame, not the consumers.

Consumers are persistently hit with cyber-attacks, their private information is leaked by banks and service providers everywhere and the pandemic made it all a little worse. How convenient to blame all cyber-crime on single IP addresses. Criminalizing consumers while letting Pornhub off the hook.

If Canada wants to shake off its reputation of infringement haven, our regime has to align with the US notice and takedown regime which is followed worldwide due to Big Tech predominantly operating under US law. To draw an analogy, we have witnessed with our own eyes that it is impossible to tackle a pandemic without a concerted worldwide effort. Closing borders is a demonstrably limited solution or rather a mild failure. There are no borders on the internet. Issues arise on a global level and have to be addressed from a global perspective. A unified worldwide IP legislation is the only decent way forward.

As for the interveners, they seem to suffer from academic copyright militant activism aiming to destroy economic rights. When you live your life in a bubble and pretend that the internet hasn’t compromised countless lives and the privacy of billions of people, then you only worry about copyright for free and unfettered access to information to a public that keeps misusing the internet to harm vulnerable persons. You reason from a very limited idealized utopia that can only drive in academic discourse.

This academic utopia is the reason why countless survivors are suing Montreal company Mind Geek in the USA. Stop discounting the suicides caused by crimes committed in the name of “net neutrality”. If net neutrality means that courts should never do anything about egregious cybercrime, such as piracy and distribution of non consensual porn, then net neutrality has worked out great so far to make the world a more suicidal place.

I am 100% for ISP blocking of unlawful content, before it is shown whether or not it is unlawful. Other efficient means of content blocking include search engine delisting (or not listing from the outset) social media censorship, taxing big tech, massive take-downs, reducing access to harmful sites, dissuading hate-speech, prosecuting online discrimination, to name a few.