Copyright And Piracy: The Immunity Of Website Operators?

The Federal Court of Appeal (the "FCA") recently rendered an important decision1 for the fight against copyright piracy, in which it ruled that a website knowingly facilitating the circumvention of legal means to watch television programs cannot benefit from the immunity afforded to neutral conduits under paragraph 2.4(1)(b) of the Copyright Act (the "Act"), even though it may be possible to circumvent such legal means through other legitimate sites like Google.

The FCA also reviewed the application criteria for interlocutory injunctions and Anton Piller orders seeking, as in this case, to close down such sites and obtain incriminating evidence against their directing minds and other persons involved.

The facts

The appellants alleged that the respondent was infringing their copyrights by communicating and making available to the public the television programs they broadcast, through the website he operated, called TVAddons, which the appellants characterized as a platform for copyright piracy. The respondent's website was a repository of "add-ons", a type of software that can be used to supplement other applications with additional functions or features. Several add-ons promoted on the respondent's website allow users to illegally access content protected by copyright. TVAddons also offered "Indigo", a tool that facilitates and automates the installation of add-ons, as well as the "Free Telly" application, which is a customized version of KODI preconfigured with a selection of principally infringing add-ons.

On June 9, 2017, following ex parte and in camera motions, Justice LeBlanc of the Federal Court issued an interim injunction enjoining the respondent from communicating or making available to the public the appellants' programs, or inducing or authorizing anyone to infringe the appellants' rights, and ordering him to provide a computer forensics expert with his login credentials for the domains and sub-domains that hosted the TVAddons website, and for various social media sites associated with it.

The judge also issued an Anton Piller order allowing the appellants' lawyers to inspect the respondent's residence, make copies of documents pertaining to his website as well as its financial records, remove certain materials, make mirror images of certain digital devices, and question the respondent regarding the location of information and the names of third parties involved in the development of the TVAddons website, the Free Telly" and...