FairPlay: What's the cost? What's the tech? And, does the CRTC have the authority?

[Len]

Nearly 10,000 submissions, most by people who didn’t read the proposal

The FairPlay Coalition has a fight on its hands.

Last week saw the passing of the deadline to respond to the CRTC’s call for comments on the public proceeding opened to consider the FairPlay Coalition’s call for a new agency to help fight online piracy of content.

In January, the coalition of Canadian artists, content creators, unions, guilds, producers, performers, broadcasters, distributors, and exhibitors proposed the CRTC establish something called the Independent Piracy Review Agency (IPRA), which would assist it in identifying websites blatantly engaged in content theft – and have ISPs block them in Canada.

A number of countries have taken to blocking such pirate sites, using various means, in order to protect their content creators as well as all the ancillary industries and economic benefit derived from the creation of video content.

As usual with proceedings like these, the best submissions (in favour, or against) come from the folks who’ve actually read the proposal and know what they’re talking about. Of the 9,991 submissions, the vast majority we’ve seen have been driven by misinformation campaigns and not from the actual proposal itself.

For example, the Brock University Faculty Association wrote in its submission, which was a reaction to a letter of support for FairPlay written by the school’s vice-president of administration: “We are particularly concerned that this industry-led proposal to block websites accused of piracy severely threatens the principle of net neutrality in Canada and raises the prospect of industry-led censorship of websites.”

If the professors had read the FairPlay submission they would realize that the industry very much does not want anything to do with censoring web sites. However, reading the support letter by that Brock U VP, it seems highly likely he didn’t read the proposal either.

So, we’re going to stay away from the misinformed Canadians who fired off form letters after reading distorted hype and get into a few of the substantial issues. To be clear, the FairPlay proposal has nothing to do with network neutrality or censorship. It’s about piracy. About theft. About content ownership and how the makers of content should be able to determine how best to monetize their own creations.

Costs

A number of intervenors, especially smaller ISPs, rightly have questions about the costs of the proposed regime. Any new administration comes with new costs which must be borne by someone – and asking ISPs to block websites is not something that can be done for free. “Small ISPs face a number of regulatory requirements that increase the cost of doing business, including notice-and-notice, lawful interception, and readiness to comply with any warrants. These burdens are particularly onerous for small companies with limited administration staff. Adding the proposed additional burden to ISPs will further discourage competition in the marketplace from non-incumbent carriers, with a minimal decrease in piracy,” said the British Columbia Broadband Association in its opposition to FairPlay.

The Canadian Cable Systems Alliance, which represents more than 100 independent network operators offered conditional support for the proposal, saying it’s happy to get behind FairPlay, as long as CCSA members don’t have to foot any of the bill.

“It is because online copyright infringement remains a significant problem despite all the efforts to address it over the last twenty (plus) years that CCSA is now open to Canada considering new methods to reduce it – methods which in past years we may have considered unnecessary or inappropriate in the circumstances of the time. As such – by not holding on to past arguments simply for the sake of doing so and instead being open to examining new and novel approaches for Canada which have proven to be successful elsewhere – we believe we have matured in our views regarding this issue,” reads its submission.

Halifax-based cable, wireless and broadband provider Eastlink worried in its submission that no matter how IPRA is structured, it would feel the cost sting. While the FairPlay proposal said the agency’s cost would be low, “we are not sure how such a finding could be made at this juncture, particularly if rogue piracy sites are so common that granting this application is necessary,” reads the Eastlink intervention.

Even if IPRA is funded, as it is proposed, by the rights holders seeking to block sites ripping them off, Eastlink believes costs will still be passed on. “In recent years, our negotiations for access to programming content have become increasingly more difficult as we are faced with demands for higher affiliate payments from these companies,” it explains. “It would seem very likely to us that if, for instance, a large Vertically Integrated (VI) programming service pays for content, and then chooses to pay for the operation of IPRA, that the costs paid for IPRA will find its way into the ‘content costs’ bucket, for which we, as BDUs will pay.”

So, if this new agency will save content owners the millions of dollars the FairPlay proposal suggests, “then those savings should be more than enough to cover the costs of IPRA,” says Eastlink.

“If the Commission does decide in favour of the application, it must consider and address the impact on costs of ISPs, particularly smaller ISPs such as Eastlink who may experience a more significant impact on systems and resources as compared to the much larger ISPs.”

The Independent Telecommunications Providers Association, Xplornet, the Canadian Network Operators Consortium and others all cautioned the CRTC to ensure that ISPs do not foot the bill for any of this, and some proposed ISPs be allowed to charge a fee to do the work.

Technology

A number of intervenors want a much better sense of the blocking technology FairPlay would propose. Details were light on that in the proposal. Opponents believe any sort of website blocking is either too difficult or expensive to implement, or too easily circumvented with the likes of VPNs.

The Canadian Internet Registration Authority adamantly opposes the application, saying it runs counter to the open internet concept, but primarily focused on the technology possibilities in its intervention. “The FairPlay Canada proposal does not provide an explanation about what technical mechanism(s) the ISPs would employ, or be allowed to employ,” reads the CIRA submission.

It says there are five categories of blocking which could be undertaken: IP/Protocol-based blocking; deep packet inspection (DPI)-based blocking; URL-based blocking; platform-based blocking (especially search engines), and DNS (domain name system)-based blocking, each of which have their own unique challenges.

According to CNOC, none of the examples it presented would be very effective in blocking pirated content, or be very affordable to its independent members. “CNOC notes that there are three methods of blocking access to websites available to ISPs today: (1) IP address blocking; (2) DNS blocking; and (3) blocking that uses DPI technology. All these methods have unique problems that negatively impact their efficacy. In addition, all three methods can be circumvented through the use of VPNs,” reads its submission.

“DPI technology is the most effective form of website blocking and can block access to specific named websites such as ‘Pirate Bay’, for example. However, DPI technology must be rejected as a form of website blocking due to its prohibitive costs.”

Two companies which have experience in their jurisdictions with successful pirate site blocking refuted those claims. In the U.K., wrote BBC general counsel Martyn Freeman, “site blocking legislation has proved highly successful in blocking access to pirated content. In case after case, the UK High Court has held that site blocking injunctions are a proportionate response to the threat of piracy, and have been applied in a way that does not block lawful content,” he wrote.

“Today, piracy websites operate anonymously online from jurisdictions all over the world, making it difficult to identify the people responsible for them or take action against them. Legal tools must therefore be adapted in order to respond to this highly mobile threat. Anti-piracy regimes like the one proposed by FairPlay have been proven to work.”

The English Premier League (the U.K.’s foremost pro soccer league) said in a submission it has seen substantial success when it comes to site blocking. The Premier League took its first action in 2013 against a pirate site and simply blocking it had the effect of putting the pirate site out of sight.

“So, while it is correct to say that there are workarounds and limitations to website blocking, it can also be quite easily shown to be hugely effective. Studies show that the impact of blocking not only reduces access to the website targeted by the block, but also the usage of other pirate services,” reads its submission.

Further, last year the Premier League “secured a different type of blocking order from the High Court in England. This allows us to ‘dynamically’ block streaming servers which are carrying pirated matches in real time.

“Ultimately, the Court was comfortable that the targeting of the pirated content was highly accurate, and that there were plentiful safeguards in place to prevent over-blocking, or even mitigate its impact in the extremely unlikely event that it should happen.

“The impact of this block has been seismic on our ability to control and reduce pirated content within the U.K. While we are aware this is several steps ahead of what FairPlay Canada is asking the Commission to consider, we can confirm that there has been no instance of over-blocking whatsoever. That is set against the background of blocking approximately 800 IP addresses every single week.”

(Ed note: That many IP addresses blocked each week – and from just one content provider – will support the worries smaller ISPs have about increased costs.)

CRTC jurisdiction

Some intervenors, such as the Public Interest Advocacy Centre and independent ISP Teksavvy, dispute FairPlay’s notion that the CRTC even has the ability under the law to launch something like IPRA.

Many of the benefits FairPlay targets, “do not fall within the scope of the Telecommunications Act, specifically: s. 7(a) only relates to the benefits of connecting Canadians, not the benefits of censorship, and s. 7(h) only relates to the price of telecommunications, not the price of broadcasting. The Applicant’s argument for better protection of privacy cannot justify the scope of their proposed regime,” notes PIAC.

Teksavvy insists the proposal violates the common carrier policy protected by the Telecom Act and that copyright enforcement does not fall under the Commission’s purview at all. “Reducing the rate of copyright infringement is not the kind of exceptional circumstance that, with reference to section 7 of the Telecommunications Act, would authorize an exception to the common carrier doctrine enshrined in section 36 of that Act, and the network neutrality principles that flow from it,” reads the Teksavvy submission. “The Act does not authorize the Commission to establish an agency to identify copyright infringing websites.”

Telus and Shaw both disagree with that reading of the Act and say the CRTC certainly can set up IPRA in their supportive interventions.

“The CRTC has both the expertise and the jurisdiction to implement the proposed regime,” reads the Telus submission. “In issuing orders to disable access to websites heavily involved in piracy, the Commission will not be called upon to adjudicate on grey areas of copyright law. Rather, it will be called upon to assess the degree of harm caused by the dissemination of copyright-infringing content online and balance the interests of all stakeholders… the proposed regime does not improperly intermingle the powers of the Commission under two separate enabling statutes.”

“It is clear that Canada’s current legal and regulatory approach to internet piracy is insufficient,” reads the Shaw submission. “New tools are required to protect Canadian internet users from the risks associated with malicious internet piracy services and to protect rightsholders from the unprecedented volume of online theft and dissemination of pirated content.”

The FairPlay Coalition now has until April 23rd to answer the interventions.