Dynamic Site Blocking North And South Of The Border: The Federal Court Of Canada And A New York Court Grant Injunctions To Block Unauthorized Streaming Websites

• Published date: 29 July 2022
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Copyright, Broadcasting: Film, TV & Radio
• Law Firm: Cassels
• Author: Mr Casey Chisick, Eric Mayzel, Jessica Zagar and Alexander De Pompa

On May 27, 2022, the Federal Court of Canada released Rogers Media Inc. v John Doe 1, 2022 FC 775 (Rogers Media), in which the Federal Court granted the first-ever dynamic site-blocking injunction in Canada. In Rogers Media, the plaintiff media companies sought an interlocutory injunction requiring the third-party respondents-certain Internet service providers that provide the vast majority of access to the Internet in Canada-to block IP addresses that host copyright-infringing pirate broadcasts of live NHL hockey games. In issuing the dynamic site-blocking order, which requires the ISPs to block infringing sites in "real time" as they are identified during the course of a game, the Federal Court built upon recent appellate precedent that confirmed that static site-blocking orders against enumerated websites are available in copyright infringement cases in Canada.

The Rogers Media decision came on the heels of similar injunctions in the United States. On April 26, 2022, the U.S. District Court for the Southern District of New York issued three default judgments and permanent injunction orders against several unknown defendants for copyright infringement in United King Film Distribution Ltd et al v Does 1-10 d/b/a Israel.tv,¹ United King Film Distribution Ltd et al v Does 1-10 d/b/a Israeli-tv.com,² and United King Film Distribution Ltd et al v Does 1-10 d/b/a Sdarot.com.³ In all three cases, the unknown defendants had infringed copyright by streaming the plaintiffs' content, broadcasting channels, and television services without authorization. The New York court issued permanent injunction orders requiring all ISPs in the US to block access to the defendants' websites and requiring all third parties to cease providing services of any kind, including web hosting and financial services, used in connection with the defendants' operations.

Together, these cases represent a significant development in the range and scope of remedies available to copyright owners to combat online piracy in Canada and the US.

Rogers Media

Background

The plaintiffs in Rogers Media were Canadian media companies that own and operate television stations and online subscription services in Canada. Collectively, those companies hold the copyright for the live broadcasts of all NHL games in Canada, including the exclusive right to communicate those games to the public through television broadcast and online streaming. The plaintiffs commenced an action against certain unknown defendants whom they alleged were infringing their copyright by arranging for and facilitating the streaming of unauthorized copies of the NHL broadcasts to viewers in Canada. When the piracy continued despite the plaintiffs' efforts, they sought a novel dynamic site-blocking order against the respondent ISPs to cut off access to the infringing material.

A few years earlier, in Bell Media Inc. v GoldTV.Biz, 2019 FC 1432, the Federal Court issued the first site-blocking order in Canada. In that case, the court granted a mandatory interlocutory injunction that required certain ISPs to block access to specified websites that offered unauthorized subscription services to programming over the Internet. GoldTV was upheld by the Federal Court of Appeal in Teksavvy Solutions Inc. v Bell Media Inc., 2021 FCA 100, with leave to appeal to the Supreme Court of Canada denied.⁴ Cassels represented a coalition of music industry associations in the Teksavvy appeal and commented on that decision when it was released last year.

The plaintiffs in Rogers Media argued that the type of static site-blocking order issued in GoldTV, which listed specific websites subject to the order and provided that new...