The Bell coalition website blocking proposal downplays concerns about over-blocking that often accompanies site blocking regimes by arguing that it will be limited to “websites and services that are blatantly, overwhelmingly, or structurally engaged in piracy.” Having discussed piracy issues in Canada and how the absence of a court order makes the proposal an outlier with virtually every country that has permitted site blocking, the case against the website blocking plan now turns to the inevitability of over-blocking that comes from expanding the block list or from the technical realities of mandating site blocking across hundreds of ISPs for millions of subscribers. This post focuses on the likely expansion of the scope of piracy for the purposes of blocking and the forthcoming posts will discuss other sources of blocking over-reach.

The Bell coalition’s definition for piracy sites is not found in legislation. Rather, it seeks to effectively draft its own legislative definitions for assessing whether a site or service is blatantly, overwhelmingly or structurally engaged in piracy. Regardless of the standard, the difficulty of identifying “pirate sites” should not be under-estimated. Consider the MUSO report that is the coalition’s primary source of piracy evidence. As I noted in the discussion on the evidence of piracy in Canada, MUSO has developed a list of 23,000 piracy sites which it uses as the basis for estimating the number of piracy visits in Canada. Yet the sample sites used by MUSO highlight the challenge in identifying what constitutes a piracy site, which is a difficult issue for developing reliable statistical data and an even bigger problem with respect to mandated website blocking.

For example, its list of web download sites includes addic7ed.com, a site that contains user-generated sub-titles for television shows and movies. The site includes completed sub-titles and works in progress that allow users to contribute to the translations and sub-titles. It does not contain full video or audio. The legality of user-generated sub-titles may be open for debate (sub-titles can be used for lawfully acquired videos) but few would think of this kind of site as one that is “blatantly, overwhelmingly, or structurally engaged in piracy.”

The MUSO list also contains multiple sites that can be used to capture the video from sites such as YouTube. Stream ripping is a concern for the music industry, but these technologies (which are also found in readily available software programs from a local BestBuy) also have considerable non-infringing uses, such as for downloading Creative Commons licensed videos also found on video sites.

The obvious question is whether the Bell coalition believes these sites meet its standard for blocking. If they do, the standard is far lower than what would be commonly understood as a site or service that is blatantly, overwhelmingly or structurally engaged in piracy. If they fall outside the standard, the validity of the MUSO report is called into question since its estimate of piracy visits in Canada include visits to those sites. In other words, either the scope of block list coverage is far broader than the coalition admits or its piracy evidence is inflated by including sites that do not meet its piracy standard.

Once the list of piracy sites (whatever the standard) is addressed, it is very likely that the Bell coalition will turn its attention to other sites and services such as virtual private networks (VPNs). This is not mere speculation. Rather, it is taking Bell and its allies at their word on how they believe certain services and sites constitute theft. The use of VPNs, which enhance privacy but also allow users to access out-of-market content, has been sore spot for the companies for many years. In 2015, Rogers executive David Purdy reportedly called for shutting down VPNs, while Bell executive Mary Ann Turcke specifically targeted VPN usage to access U.S. Netflix, telling an industry conference:

“It has to become socially unacceptable to admit to another human being that you are VPNing into U.S. Netflix. Like throwing garbage out your car window – you just don’t do it. We have to get engaged and tell people they are stealing. When we were young and made the error of swiping candy bars at the checkout of the grocery store, what did our parents do? They marched us back in, humiliated us, told us to apologize to the nice lady and likely scolded us on the way home.”

In the aftermath of those comments, briefing notes for Canadian Heritage Minister Melanie Joly identified VPNs as an emerging copyright issue. The comments equating VPN use to theft echo the remarks being made today by the Bell coalition about piracy sites and services. Further, since the response to site blocking from some Internet users will surely involve increased use of VPNs to evade the blocks, the attempt to characterize VPNs as services engaged in piracy will only increase. VPN services are already targeted by IP lobby groups such as the IIPA and can be expected to face demands for blocking (similar to the way Netflix and Hulu have cracked down on VPN use).

Beyond VPNs, it would not be surprising to find legitimate services streaming unlicensed content as the next target. With Bell characterizing accessing U.S. Netflix as stealing, the company may call for blocking of content from foreign services without Canadian rights. In fact, that is precisely what Bell argued in 2015 in the context of U.S. television signals. Kevin Crull, then president of Bell Media, told a conference:

Canada is the only country in the world that allows American networks to be retransmitted without restriction despite valid and exclusive copyrights held by domestic broadcasters…Do we need [the American over-the-air] networks? Are these signals necessary for Canadian viewers? No. Canadian networks buy the rights to 99 of the top 100 American shows. No viewer would be denied popular content.

The Bell solution was simple: block U.S. signals on cable and satellite services. The argument in the Internet streaming service context will be the same, namely that Canadian rights holders are having their rights undermined by the accessibility of unlicensed U.S. streams that constitute infringement in Canada. Given the past arguments against access to these sites and services, which Bell coalition members have called “stealing” and “theft”, the steady expansion of the block list seems like an inevitability, which is why the exclusion of Parliament in setting policy and the courts in reaching any determination with respect to blocking is a step in the wrong direction.