Court grants CIPPIC, Beanfield intervenor status in dynamic site-blocking case

A Federal Court judge has granted intervenor status to the Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic at the University of Ottawa (CIPPIC), and Beanfield Technologies Inc. in an effort by several broadcasters seeking Canada's first-ever "dynamic" site-blocking order. In an order issued Wednesday, Federal Court Judge William Pentney granted intervenor status to the two organizations, and set a Nov.13 deadline for interventions. "I find that CIPPIC will assist the court in this case by bringing a unique, public interest perspective based on its institutional role and knowledge, and based on its prior intervention experience," Pentney wrote in the order. Back in September, CIPPIC had applied for the permission to intervene in the proceeding, in which the court will decide whether or not to grant an order sought by BCE Inc., Rogers Communications Inc., and Quebecor Inc. that would require third-party internet service providers (ISPs) to block a rolling list of IP addresses in real-time, as they are identified by the broadcasters as streaming pirated National Hockey League games while those games are being broadcast throughout the NHL season. In their application, CIPPIC argued that because dynamic site-blocking is a new form of legal intervention, the order creates a blocking regime “without the need to present a court with an evidentiary basis establishing the infringing nature of a blocked IP address; and it obligates service providers to develop censorship capabilities that do not currently exist on their networks.” Such an effort requires "distinct additional safeguards and transparency measures,” CIPPIC wrote at the time. "There is no dispute that this is a case of first impression in Canada, with important public interest dimensions concerning the novel order sought by the plaintiffs. It is in the interests of justice to grant the CIPPIC motion to intervene," Pentney wrote in the Wednesday order. The request from Bell, Rogers, and Quebecor builds on the success of the three companies earlier this year in securing Canada's first-ever site-blocking order in a case known by the name of it's anonymous pirate IPTV plaintiff, GoldTV. In August, TekSavvy Solutions Inc. appealed the site-blocking order in GoldTV to the Supreme Court, after the order survived a Federal Court of Appeal challenge from the independent ISP in May. In granting CIPPIC leave to intervene Wednesday, Pentney noted that the plaintiffs in the new dynamic blocking case do not "strenuously oppose" CIPPIC's motion, but did point out that CIPPIC "failed to take advantage of the opportunity to review the confidential motion record the plaintiffs had filed and that CIPPIC’s motion for intervention lacks sufficient details about the position it intends to advance in the proceeding if granted intervener status." Pentney also granted limited permission to intervene to Beanfield, a facilities-based ISP that had argued it had unique insight into the requirements on ISPs and the burdens created by such a dynamic site-blocking order. (The blocking order is already being fought by TekSavvy, a wholesale-based ISP.) Beanfield is not among the third-party respondents named in the case, which names the ISPs TekSavvy, Distributel Communications Ltd., Cogeco Inc., and Bragg Communications Inc.‘s Eastlink. Beanfield had argued to the court that the case will “entrench whether, when, and how the blunt instrument of blocking Internet traffic ought to be deployed from within the range of potential stopgaps for prima facie copyright infringement,” and that its position as a facilities-based ISP means its “network has different technical mechanisms at its core, in its transport network, in its last mile, and with respect to its customer premises equipment.” "I find that Beanfield’s interests and proposed submission focus on questions that may rise in some future hypothetical case, and it has not demonstrated how its submissions or evidence will assist the Court in determining the matter that actually arises in this proceeding," Pentney wrote. Pentney did, however, grant Beanfield the right to intervene on the implications of the blocking order on businesses like it. "Beanfield can assist the Court in understanding whether the proposed order sought by the Plaintiffs should be limited or restricted to avoid imposing unintentional burdens on it, and other facilities-based ISPs," he wrote. "No other party has expressed any intention – or apparently possesses the necessary knowledge – to address this point, and it may be important to understand the caveats or limits that should be included in any order to forestall downstream problems or, at a minimum, to maintain Beanfield’s scope to argue the point if an order is ever sought against it. — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Jenna Cocullo at jcocullo@thewirereport.ca.

Court grants CIPPIC, Beanfield intervenor status in dynamic site-blocking case

Broadcast | October 14, 2021

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Court grants CIPPIC, Beanfield intervenor status in dynamic site-blocking case

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