Federal Court grants blocking order targeting pirate site copycats

The reasons behind a Federal Court justice’s December decision to grant a site-blocking order targeting potential “copycat” versions of a content pirating platform have been released by the court. Late in 2024, Justice Simon Fothergill ordered several Canadian internet service providers (ISPs), including BCE Inc., Rogers Communications Inc., Telus Corp., Quebecor Inc.’s Videotron, Bragg Communications Inc.’s Eastlink, and TekSavvy Solutions Inc., to block their customers from accessing pirated content sites related to a platform identified as Soap2day. Fothergill’s specific reasoning for that order was released Friday, Jan. 24. The blocking order is the result of a June 2023 motion filed by several content producers including Bell Media, Columbia Pictures, Disney Enterprises, Netflix, Paramount Pictures, Universal City Studios, and Warner Bros. Entertainment, for an injunction requiring the unidentified operator of Soap2day to deactivate the platform. A day after that motion, Fothergill notes it seemed the platform had indeed been deactivated. However, the next year, Fothergill states three “substantially similar” online piracy platforms operating under the Soap2day name gained popularity. The judge said it is not clear whether or not the operators of those platforms, identified in court documents as “John Doe” defendants, are the same person or people responsible for the original Soap2day platform. So, those new defendants were added to the court proceeding in Spring 2024. Around that time, two of the three new platforms in question appeared to be deactivated. Later, the content producers who launched the suit noticed the appearance online of another platform nearly identical to one of the ones that was deactivated. Fothergill observes that the content producers “report a growing trend” of pirate platforms being deactivated and then “promptly replaced” by copycat sites, citing examples of other pirate sites being shut down or blocked “only to be replaced by identical sites with similar domain names.” “Copyright owners are forced into a digital game of ‘whack-a-mole’: each time a site is deactivated, another immediately appears in its place. Traffic to domains that are subject to site-blocking orders may be disrupted, but the overall traffic to copycat sites is undiminished,” Fothergill writes. Fothergill’s order refers to the 2019 precedent-setting case of GoldTV, in which a Federal Court judge ordered ISPs to block a number of different domain names leading to a pirate IPTV site known as GoldTV. It was the first time a Canadian court issued such an order. However, in contrast to Soap2day, GoldTV used a subscription-based model, so it was “comparatively easy to verify whether subsequent domains and IP addresses were associated with the original platform,” Fothergill writes. In the case of Soap2day, the platforms mostly make their money through advertisements. Without a subscription-based model, it is difficult to determine whether or not new domains operating under the Soap2day banner are operated by the same people or related at all. Because of this, Fothergill notes that instead of a “static” site-blocking order that requires ISPs to block domains, subdomains, or IP addresses associated with a certain platform like GoldTV, this order “potentially encompasses” additional Soap2Day platforms or copycat sites that may appear or increase in popularity once existed platforms are deactivated. Apparent copycat sites can only be blocked if they make infringing content available to the public, do not respond to notices about alleged infringement, and operate in “substantially the same way” as the existing Soap2day sites, Fothergill decided. The content producers who filed the suit are to alert the ISPs listed in the order of any new sites that appear and, unless the ISPs object, the producers can file a motion with the court to expand the scope of the site-blocking order. According to Fothergill, the content producers have shown that the blocking order is necessary and “the most, if not the only, effective remedy to put an end to the copyright infringing activities of the defendants and of those who imitate their platforms.” The order expires after two years, unless the court should decide otherwise, Fothergill decided. He noted that the ISPs did not oppose the order, which he said includes measures to exclude legitimate websites from being blocked while calling the order a “modest and necessary extension of the relief commonly granted in proceedings of this kind.” The ISPs were given ten days from the Dec. 16 order to block or attempt to block at least their residential wireline internet service customers from the Soap2day platforms. Fothergill’s order states that any of the ISPs can make a motion objecting to adding new domains suspected to be related to Soap2day to the order for 10 days after content producers file to make any additions, upon which the court would then make a decision. The 2019 GoldTV site-blocking order was appealed by TekSavvy to the Federal Court of Appeal. In May of 2021, the Federal Court of Appeal upheld the blocking order, which TekSavvy again appealed, this time to the Supreme Court of Canada. The Supreme Court ultimately dismissed the appeal in March 2022, representing the victory of a novel anti-piracy strategy sought by three broadcasters – Bell, Rogers, and Quebecor – after they were rebuffed both by the CRTC in 2018 under the banner of the FairPlay coalition and by the House of Commons Industry committee when it declined to legislate on site-blocking. The GoldTV case was followed by another anti-pirating suit in 2021, in which Bell, Rogers, and Quebecor requested of the court a broader, “dynamic” site blocking order against unknown defendants. Their ask – which was contested – was that a list of ISPs be required to block a rolling list of IP addresses in real-time, as they are identified by the broadcasters as broadcasting pirated National Hockey League games while those games are being broadcast throughout the NHL season. The Federal Court issued that order in July 2024. Alleged pirate streamers of Major League Baseball games have also been subjected to a dynamic site-blocking order. hdaley@thewirereport.ca With files from The Wire Report’s archives.

Federal Court grants blocking order targeting pirate site copycats

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By Hannah Daley
| January 24, 2025

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