A consortium of media and distribution companies calling itself “FairPlay Canada” is lobbying for Canada to implement a fast-track, extrajudicial website blocking regime in the name of preventing unlawful downloads of copyrighted works. It is currently being considered by the Canadian Radio-television and Telecommunications Commission (CRTC), an agency roughly analogous to the Federal Communications Commission (FCC) in the U.S.

The proposal is misguided and flawed. We’re still analyzing it, but below are some preliminary thoughts.

The Proposal

The consortium is requesting the CRTC establish a part-time, non-profit organization that would receive complaints from various rightsholders alleging that a website is “blatantly, overwhelmingly, or structurally engaged” in violations of Canadian copyright law. If the sites were determined to be infringing, Canadian ISPs would be required to block access to these websites. The proposal does not specify how this would be accomplished.

The consortium proposes some safeguards in an attempt to show that the process would be meaningful and fair. It proposes the affected websites, ISPs, and members of the public would be allowed to respond to any blocking request. It also suggests that any blocking request would not be implemented unless a recommendation to block were adopted by the CRTC, and any affected party would have the right to appeal to a court.

Fairplay argues the system is necessary because, according to Fairplay, unlawful downloads are destroying the Canadian creative industry and harming Canadian culture.

(Some of) The Problems

As Michael Geist, the Canada Research Chair in Internet and E-Commerce Law at the University of Ottawa points out, Canada had more investment in film and TV production last year than any other time in history. And it’s not just investment in creative industries that is seeing growth: legal means of accessing creative content is also growing, as Bell itself recognized in a statement to financial analysts. Contrary to the argument pushed by the content industry and other FairPlay backers, investment and lawful film and TV services are growing, not shrinking. The Canadian film and TV industries don’t need website-blocking.

The proposal would require service providers to “disappear” certain websites, endangering Internet security and sending a troubling message to the world: it’s okay to interfere with the Internet, even effectively blacklisting entire domains, as long as you do it in the name of IP enforcement. Of course, blacklisting entire domains can mean turning off thousands of underlying websites that may have done nothing wrong. The proposal doesn’t explain how blocking is to be accomplished, but when such plans have been raised in other contexts, we’ve noted the significant concerns we have about various technological ways of “blocking” that wreak havoc on how the Internet works.

And we’ve seen how harmful mistakes can be. For example, back in 2011, the U.S. government seized the domain names of two popular websites based on unsubstantiated allegations of copyright infringement. The government held those domains for over 18 months. As another example, one company named a whopping 3,343 websites in a lawsuit as infringing on trademark and copyright rights. Without an opposition, the company was able to get an order that required domain name registrars to seize these domains. Only after many defendants had their legitimate websites seized did the Court realize that statements made about many of the websites by the rightsholder were inaccurate. Although the proposed system would involve blocking (however that is accomplished) and not seizing domains, the problem is clear: mistakes are made, and they can have long-lasting effect.

But beyond blocking for copyright infringement, we’ve also seen that once a system is in place to take down one type of content, it will only lead to calls for more blocking, including that of lawful speech. This raises significant freedom of expression and censorship concerns.

We’re also concerned about what’s known as “regulatory capture” with this type of system, the idea that the regulator often tends to align its interests with those of the regulated. Here, the system would be initially funded by rightsholders, would be staffed “part-time” by those with “relevant experience,” and would get work when rightsholders view it as a valuable system. These sort of structural aspects of the proposal have a tendency to cause regulatory capture. An impartial judiciary that sees cases and parties from across a political, social, and cultural spectrum helps avoid this pitfall.

Finally, we’re also not sure why this proposal is needed at all. Canada already has some of the strongest anti-piracy laws in the world. The proposal just adds complexity and strips away some of the protections that a court affords those who may be involved in legitimate business (even if the content owners don’t like those businesses).

These are just some of the concerns raised by this proposal. Professor Geist’s blog highlights more, and in more depth.

What you can do

The CRTC is now accepting public comment on the proposal, and has already received over 4,000 comments. The deadline is March 1, although an extension has been sought. We encourage any interested members of the public to submit comments to let the Commission know your thoughts. Please note that all comments are made public, and require certain personal information to be included.