Canada’s Federal Court Grants NHL Pirate Streaming Blockade for 22/23 Season

Last year, Canada’s Federal Court of Appeal upheld the first pirate site-blocking order in the country.

The landmark decision opened the door to additional and more advanced blocking requests. Indeed, it didn’t take long before NHL broadcasters asked the court for a pirate IPTV blocking order of their own.

The Federal Court eventually granted this request for the ongoing season, with some safeguards. In part due to intervention from the Canadian Internet Policy and Public Interest Clinic (CIPPIC), an independent expert was appointed to measure the effectiveness and proportionality of the blocking efforts.

In addition, blocking windows were limited to the broadcasts of the games and the order only applied to the 2021/2022 season, which was already in its final stages when the court order was issued.

2022/2023 NHL Piracy Blockade

It was no surprise when the media companies, which include Rogers, Bell, and The Sports Network, sought similar blocking measures at the Federal Court for the new season that got underway in October.

After reviewing the motion, last week Associate Chief Justice Jocelyne Gagné granted the new blocking order. The injunction applies to the current NHL season which ends next year after the final of the Stanley Cup

“Third Party Respondents shall, during each of the NHL Live Game Windows […], block or attempt to block access, by at least their residential wireline Internet service customers, to each of the IP addresses for the Target Servers..,” Justice Gagné writes.

The game windows and server IP addresses are confidential but likely cover several of the most popular IPTV streaming services in Canada. These IP addresses can also be updated during the season if streaming services try to circumvent the blockades.

‘Effective and No Complaints’

Before issuing the new blocking measures the court reviewed a report from independent expert Mr. David Lipkus on the effectiveness of the earlier blockades. Mr. Lipkus concluded that most Internet providers were able to block the infringing IP-addresses effectively. In addition, there were no serious over-blocking complaints.

“Mr. Lipkus found that nine out of ten Third Party Respondents [the ISPs] were able to block 100% of the tested IP Addresses, and that there were no legitimate complaints from any of the individuals or businesses related to the blocking,” Justice Gagné writes.

Together with another expert, they concluded that the availability of pirated streams declined without any significant costs. This means that the measures are seen as effective.

“Mr. Lipkus and Mr. Wilkins concluded that the empirical data supported an assessment that the overall supply of infringing copyrighted content was reduced and that the Original Order met the necessary conditions for effectiveness, because it delivered that measurable benefit for a low cost.”

Little Pushback, More Blockades

None of the Internet providers objected to the latest blocking request. However, CIPPIC intervened and will keep a close eye on developments to ensure safeguards are in place to prevent abuse.

The most recent injunction further clarifies that if new independent experts are appointed in the future, CIPPIC should be consulted in the selection process. The current expert, Mr. Lipkus, appears to be working for the sports leagues, which can raise neutrality questions.

All-in-all, it’s clear that blocking measures are now part of the standard anti-piracy repertoire in Canada. Internet providers have also stopped protesting but without any changes in blocking mechanisms, that would likely prove futile anyway.

That said, compared to some other countries there are robust safeguards in place to prevent over-blocking. They require all parties to remain cautious and careful, which ultimately is best for all parties involved. Aside from the pirates, perhaps.

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A copy of the latest interlocutory injunction, issued by the Federal Court’s Associate Chief Justice Jocelyne Gagné, is available here (pdf)