ROGERS MEDIA INC. ROGERS COMMUNICATIONS INC. BCE INC. BELL MEDIA INC. CTV SPECIALTY TELEVISION ENTERPRISES INC. THE SPORTS NETWORK INC. LE RESEAU DES SPORTS (RDS) INC. GROUPE TVA INC. Plaintiffs v. JOHN DOE 1, 2022 FC 775

Date: 20220527 Docket: T-955-21 Citation: 2022 FC 775 Ottawa, Ontario, May 27, 2022 PRESENT: Mr. Justice Pentney BETWEEN: ROGERS MEDIA INC. ROGERS COMMUNICATIONS INC. BCE INC. BELL MEDIA INC. CTV SPECIALTY TELEVISION ENTERPRISES INC. THE SPORTS NETWORK INC. LE RESEAU DES SPORTS (RDS) INC. GROUPE TVA INC. Plaintiffs and JOHN DOE 1 JOHN DOE 2 OTHER UNIDENTIFIED PERSONS WHO OPERATE UNAUTHORIZED STREAMING SERVERS PROVIDING ACCESS TO NHL LIVE GAMES IN CANADA Defendants and

BELL CANADA BRAGG COMMUNICATIONS INC. dba EASTLINK COGECO CONNEXION INC. DISTRIBUTEL COMMUNICATIONS LIMITED FIDO SOLUTIONS INC. ROGERS COMMUNICATIONS CANADA INC. SASKATCHEWAN TELECOMMUNICATIONS SHAW COMMUNICATIONS INC. TEKSAVYY SOLUTIONS INC. TELUS COMMUNICATIONS INC. VIDEOTRON LTD. Third Party Respondents and SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY AND PUBLIC INTEREST CLINIC BEANFIELD TECHNOLOGIES INC. Interveners ORDER AND REASONS PUBLIC VERSION (CONFIDENTIAL VERSION ISSUED ON MAY 27, 2022) I. Introduction [ 1 ] The Plaintiffs own copyright for live broadcasts of National Hockey League (NHL) games in Canada.

They claim that certain unknown Defendants are unlawfully distributing these broadcasts to individuals in Canada, in breach of their copyright. [ 2 ] The Plaintiffs say that despite the steps they have taken thus far, the piracy continues and there are not any further remedies that are likely to be effective to stop it. That is because these Defendants hide their identities, the vast majority of their activities occur in other countries, and they have adopted business practices, which make it unrealistic to stop them using the traditional legal processes intended to deal with copyright infringement.

Because of this, the Plaintiffs say they cannot realistically enforce their copyright by cutting off the source of the unlawfully distributed copyright material. [ 3 ] Instead, the Plaintiffs seek to stop people in Canada from accessing the infringing content. In order to do that, they request a " “site blocking” " Order against the named Third Party Respondents, who control the vast majority of access to the Internet in Canada.

The purpose of the Order they seek is to stop Canadian customers from viewing the copyright-infringing broadcasts of live NHL games. [ 4 ] This case is about whether such a remedy should be granted, and if so, how to balance the interests involved. The relevant interests are those of the Plaintiffs, who own copyright in these broadcasts, the legitimate concerns of the innocent Third Party Respondents, the Internet Service Providers (ISPs) that will have to implement the order, as well as the interests of their customers, whose access to legitimate content might be inadvertently cut off.

The remedy here is also of interest to the wider public in Canada, because of its potential scope, reach and impact. [ 5 ] The Order the Plaintiffs seek builds upon a recent precedent, in which this Court approved a different type of site blocking order against a business that provided access to programming content over the internet ( Bell Media Inc v GoldTV.Biz , 2019 FC 1432 [ GoldTV FC ]).

This Order was upheld on appeal by the Federal Court of Appeal ( TekSavvy Solutions Inc v Bell Media Inc , 2021 FCA 100 [ GoldTV FCA ]), and on March 24, 2022, leave to appeal to the Supreme Court of Canada was denied (SCC File No. 39876)). The GoldTV FC order can be described as a " “static” " site blocking order because it listed a specific number of sites to be blocked, and provided that new sites could only be added by order of the Court. [ 6 ] In this case, the Plaintiffs have requested a " “dynamic” " site blocking Order, which involves trying to follow and block the unlawful streaming as it moves.

The Plaintiffs say that the type of order issued in GoldTV FC would not work here because the pirates have adopted new measures to avoid detection and defeat site blocking, including moving their infringing content from site to site on a regular

basis. Court approval would be impossible prior to each new blocking step because these efforts need to happen in real time in order to be effective. [ 7 ] The Plaintiffs say this is of particular relevance here, because most fans watch hockey games live, rather than recording them to watch later. This combination of factors means that blocking of unlawful streaming of live NHL broadcasts must happen while the broadcast is underway.

Based on the evidence they have gathered, and experience in other countries where similar site-blocking orders have been issued, the Plaintiffs say that a dynamic site blocking Order is needed to keep up with the evolution in how online copyright piracy operates. For example, in this case the sites to be blocked could shift during the course of a single hockey broadcast. This type of dynamic blocking order has never been granted in Canada or in the United States.

However, similar orders have been granted in the United Kingdom and Ireland, as well as in some European countries. [ 8 ] Some of the Third Party Respondents are prepared to consent to the Order. Others object on multiple grounds, opposing the grant of the injunction or objecting to the terms of the Order, or both. Although the objecting Third Party Respondents do not adopt identical positions, they advance broadly similar arguments. They say the process the Plaintiffs followed has been inappropriate and unfair. They contend that the Plaintiffs have failed to prove their case.

They argue that the Order sought would impose undue risks, practical difficulties and costs on them, noting that they are not accused of any wrongdoing in this matter. Finally, they submit that if any Order is to be imposed, the Plaintiffs must be required to indemnify them completely for the costs associated with compliance, including (for those that would be required to do so) any cost of upgrading their network infrastructure. [ 9 ] I am granting a mandatory interlocutory injunction to the Plaintiffs, although not on the terms they had proposed.

I am satisfied that they have established a very strong prima facie case that the unknown Defendants are engaging in ongoing breach of their copyright in the broadcasts of live NHL games. I am also satisfied that the Plaintiffs will suffer irreparable harm if this is allowed to continue.

Finally, I find that appropriate conditions can be imposed to minimize the risk of over-blocking of legitimate content and to reduce the burdens imposed on the innocent Third Party Respondents. [ 10 ] The concerns expressed by the Third Party Respondents and Interveners about the scope, reach and implications of the dynamic site blocking order sought here are valid and merit serious attention. In the particular circumstances of this case, however, these concerns do not tip the balance in favour of denying the Plaintiffs’ the relief they seek.

First, by the time this decision is issued, the NHL playoffs will be underway, and so the number of games being played – and broadcast – is significantly reduced, and will continue to decline until only two teams are playing in the Stanley Cup final. Second, the Third Party Respondents will only have to block to the limits of their current technical capacity to do so, and they will be indemnified (to a capped amount) by the Plaintiffs for the costs they incur in complying with the Order.

Third, the Plaintiffs will retain and pay for an independent expert to verify that the IP addresses identified for blocking fit within the strict criteria defined in the Order, and to monitor the Third Party Respondent’s implementation to identify any practical difficulties they encounter. This expert will provide a confidential report to the Court and the parties, and later a public report will be released and posted on the Parties’ websites. [ 11 ] The dynamic blocking Order granted in this case is unprecedented in Canada.

I am satisfied that, in the circumstances of this case, it is just and equitable to grant this relief, subject to the very specific terms and restrictions set out in the Order. [ 12 ] This case raises novel and complex legal issues. Adding to the complexity is the fact that the parties do not neatly line up on both sides of the question. It will be useful, therefore, to set out the background to the case before entering into the analysis. II. Background [ 13 ] To put this case into its proper context it is necessary to review several matters: (

a) the parties and their roles in this case; (

b) the NHL broadcasting rights that are the subject of the copyright claim; (

c) the internet and online piracy; (

d) how site blocking works; and (

e) the GoldTV decisions that set the foundation for this motion. A. The parties

(1) The Plaintiffs [ 14 ] The Plaintiffs are Canadian entities that own and operate a number of television stations and online subscription services in Canada.

While they broadcast a wide variety of television programs, the focus of this case is on live NHL games. [ 15 ] Rogers Media Inc. (Rogers), a fully owned subsidiary of Rogers Communications Inc. (Rogers Communications), owns and operates a number of television stations, which are distributed in Canada through broadcasting distribution undertakings (BDUs) such as Rogers’ affiliate Rogers Communications Canada Inc. (Rogers Cable), to which Canadian customers subscribe for a fee. [ 16 ] BCE Inc. is Canada’s largest communications company. Bell Media Inc. (Bell Media) is a wholly owned subsidiary of BCE.

Bell Media is a Canadian company that engages in broadcasting, among other activities. CTV Specialty Television Enterprises (CTV Television) is a subsidiary of Bell Media, while the specialty television stations The Sports Network (TSN) and Le Reseau des Sports (RDS) Inc. (RDS) are subsidiaries of CTV Television. [ 17 ] Bell Media owns and/or operates TSN, RDS and other television stations that it distributes through BDUs, such as its parent Bell Canada and its affiliate BellExpressVu (which together do business as Bell TV) and others.

Some of its stations are also broadcast over the air for free. [ 18 ] Groupe TVA Inc. (Groupe TVA) is a broadcaster that owns and/or operates numerous television stations that it distributes through several BDUs, including Groupe TVA’s affiliate Videotron Ltd. (Videotron). Some of its stations are also broadcast over the air for free.

(2) The Third Party Respondents [19] The Third Party Respondents are ISPs that have two things in common. First, they provide the vast majority of internet access toCanadian households and businesses. Second, none of them are accused of any wrongdoing in this case. They are simply conduitsthrough which unlawful breach of copyright is occurring. [20] In other respects, however, the Third Party Respondents are not a homogenous group, and it is important to draw distinctions both inrespect of their relationship with the Plaintiffs and their positions in regard to this litigation.

It will be convenient to distinguish betweenthree groups of Third Party Respondents. (a) "“Tied”" ISPs [21] A number of the Third Party Respondents are affiliates or wholly-owned subsidiaries of the Plaintiffs. Another way of describingthis is that these ISPs are, or have made arrangements to seek to become, integrated vertically with the Plaintiff rights holders.

Thisincludes Rogers Cable and Fido Solutions Inc., both affiliates of Rogers; Bell Canada, an affiliate of the other Bell Plaintiffs; andVideotron Ltd., an affiliate of Groupe TVA Inc. and a wholly-owned subsidiary of Quebecor Media Inc.. [22] Each of these "“tied”" ISPs is also linked with BDUs that distribute the content of their respective affiliate Plaintiff corporations.

Ingeneral terms, this reflects the phenomenon of "“convergence”" in the Canadian telecommunications industry (Canada Radio-TelevisionCommunications Commission (CRTC), Navigating Convergence: Charting Canadian Communications Change and RegulatoryImplications, Feb. 2010). [23] As noted above, these ISPs have indicated their consent to the Order sought by the Plaintiffs. They need a court order in order toundertake the site blocking, because

section 36 of the Telecommunications Act, SC 1993, c 38 requires ISPs to obtain the approval of theCRTC before taking steps to "“control the content or influence the meaning or purpose of telecommunications carried by it for thepublic.”" Absent CRTC approval or a court order, the ISPs would contravene

section 36 of the Telecommunications Act by engaging insite blocking. [24] Shaw Communications Inc. (Shaw) is in a different position than the "“tied”" ISPs, because it has entered into an agreement forRogers Communications to purchase its shares, but this agreement is subject to the approval of regulators. Shaw did not contest thematter at the hearing, and it maintains that position, and so for the moment, Shaw is best included in the category of "“non-contestingISPs”" set out below. (

b) Non-Contesting ISPs [25] Several of the ISPs did not actively participate in these proceedings, although some of them registered concerns with the terms of theproposed Order that are broadly similar to those expressed by the Contesting ISPs. This includes Shaw, Bragg Communications Inc.(Eastlink), Saskatchewan Telecommunications, and TekSavvy Solutions Inc. (

c) Contesting ISPs [26] Several of the ISPs contest the Plaintiff’s motion, arguing that: 1. the procedure followed by the Plaintiffs was unfair; 2. the Plaintiffs have not established their case, and 3. the terms of the Order sought do not reflect the appropriate consideration of their interests or those of their customers. [27] This group of ISPs includes Cogeco Connexion Inc. (Cogeco), Distributel Communications Ltd. (Distributel) and TelusCommunications Inc. (Telus). Telus did not take a position on the procedure followed by the Plaintiffs or whether the Plaintiffs had mettheir case for an injunction.

Rather, Telus focused on the difficulty that it would face in implementing the Order and the particular formof order. The position advanced by these ISPs will be discussed in more detail below. In the discussion that follows, references to thearguments of the Third Party Respondents refer to the positions advanced by Cogeco, Distributel and/or Telus (in regard to the difficultyimplementing the Order and its particular form), unless otherwise specified.

(3) The Interveners [28] The Samuelson-Guusko Canadian Internet Policy & Public Interest Clinic (CIPPIC) and Beanfield Technologies Inc. (Beanfield)were granted leave to intervene in this proceeding by order dated October 13, 2021 ( ). Both received leave to filewritten submissions, although Beanfield was limited to making submissions only in respect of the order.

CIPPIC also made oralsubmissions during the hearing of the motion. [29] CIPPIC sought to situate the case in its wider context by highlighting the interests and issues associated with site blocking orderswithin the framework of Canada’s approach to regulating the Internet. [30] Beanfield is an ISP, but it is different from the Third Party Respondents because it delivers its services through an independent,facility-based network.

Beanfield’s submissions focused on ensuring that any Order granted in this case took into account the fact thatnot all ISPs operate in the same way, and that the order was limited to the situation of the ISPs directly subject to it. [31] The arguments of the interveners are discussed in more detail below.

[ 32 ] We turn now to the copyright claim that underlies this proceeding. For all of the complexities of the case, the copyright claim is rather straightforward. The gravamen of copyright protection is control over the right to produce or reproduce the work, here the broadcasts of live NHL games. The Plaintiffs assert that the Defendants are infringing their rights by arranging for and facilitating the streaming of unauthorized copies of these works to viewers in Canada. To set this in its proper context, it is worthwhile examining how NHL broadcasting rights are allocated. B.

NHL Broadcasting Rights in Canada [ 33 ] The NHL is a professional ice hockey league that operates in Canada and the United States. It is comprised of 32 teams, including seven teams based in Canada: the Montreal Canadiens, the Ottawa Senators, the Toronto Maple Leafs, the Winnipeg Jets, the Calgary Flames, the Edmonton Oilers, and the Vancouver Canucks. [ 34 ] The NHL season is divided into three phases.

These are the pre-season, which usually runs over two weeks, involving six to eight exhibition games; the regular season, which typically runs from early October to early April, consisting of 82 games per team; and the Stanley Cup Playoffs and Final, which usually run from mid-April until mid-June, and can involve between 60 and 105 games in total. Together, these constitute the NHL season. [ 35 ] The broadcasters who hold the rights to particular NHL games film and produce them (by adding elements such as text, images, videos, and commentaries to the footage).

Copyright in the live footage and production is then assigned from the broadcaster(

s) to the NHL or to the local NHL team playing the game; the NHL and the teams in turn licence these rights back to the broadcasters. [ 36 ] The rights to broadcast NHL games depend on whether games are designated " “National Games” " or " “Regional Games” " . [ 37 ] Some NHL games between Canadian teams are designated as National Games, as are the Stanley Cup Playoffs and Final as well as select other events such as NHL All-Star games. All other games are Regional Games. [ 38 ] It is not necessary to describe in great detail the specific rights held by the various Plaintiffs.

The Plaintiffs collectively hold the rights to all National and Regional Games in Canada, which they sometimes sublicense to other broadcasters. [ 39 ] Rogers holds the rights to distribute, through television broadcast and online streaming, all live NHL National Games broadcast in the English language in Canada. It also holds the rights to distribute all the Regional Games of some Canadian teams.

Rogers Media sub- licenses select National Games it produces for broadcast by the Canadian Broadcasting Corporation as well as the Aboriginal Peoples Television Network. [ 40 ] Rogers broadcasts the games to which it holds rights through a number of television stations, including the Sportsnet branded stations (Sportsnet East, Sportsnet Ontario, Sportsnet West and Sportsnet Pacific), as well as several conventional stations, and NHL Centre Ice (which provides access to out-of-market regional games).

Rogers provides access to certain broadcasts through online services, including Sportsnet NOW and NHL Live, which Rogers operates. Rogers also produces several NHL-related programs, generally involving commentary that precedes and follows live NHL games, which it broadcasts in a similar manner. [ 41 ] Bell holds the exclusive rights to distribute all the Regional Games of several Canadian teams.

It broadcasts live NHL games through its TSN-branded stations (which include TSN1, TSN2, TSN3, TSN4 and TSN5), as well as through its RDS-branded stations (including RDS and RDS2), and through their corresponding online services (TSN DIRECT and RDS DIRECT). Bell also produces and broadcasts several NHL-related programs, in both English and French. [ 42 ] Groupe TVA holds the exclusive rights to distribute select National Games in the French language. C. The Internet and Online Piracy [ 43 ] The Internet is a global network that is composed of a collection of " “nodes” " that are directly or indirectly connected.

Devices, including computers, smart phones and tablets, each constitute a separate node " . " Each node has a unique Internet Protocol (IP) address attached to it, expressed in digital form (e.g. 172.217.164.228). [ 44 ] Nodes that Internet consumers typically use tend to focus on accessing content on the Internet. Other nodes, used by the operators of various Internet services, host and provide access to content.

Anyone who has used the Internet to find or to share information has engaged with the process, but users are generally not aware of the complex routing system that connects their device to the source of the information and that manages the traffic between the two. Several components of this system, described below, are key to understanding the remedy sought here. [ 45 ] Users typically do not use the IP address associated with any particular node. Instead, they rely on the Domain Name System (DNS) that bridges the gap between IP addresses and domains (e.g., www.NHL.com) or subdomains (e.g., www.NHL.com/scores).

The DNS system is essentially the Internet’s phonebook; it matches each domain name with its corresponding IP address. When a user attempts to connect to a recognized domain, the DNS will automatically point that request to the appropriate node associated with the relevant IP address.

The DNS is not hosted on a single repository; instead, ISPs and other entities host DNS servers that store the IP addresses used to route the traffic. [ 46 ] The transfer of data on the Internet always involves two mirror acts: downloading, which involves the first node obtaining a copy of the data from a second node connected to the internet, and (simultaneously) uploading, which involves the second node transmitting the data to the first node connected to the Internet. [ 47 ] The relevant type of download for this case is " “streaming” " : successive portions of a temporary copy of a video broadcast are downloaded, played as the download progresses, and subsequently or progressively deleted from the device.

The Plaintiffs provided an

apt analogy: streaming is akin to someone reading a book by being handed a few pages at a time, with these being discarded as the next pages are handed to the reader. At the end of the process, the reader has finished the book without the actual hard copy of the book taking up space on their bookshelf. One of the reasons streamed content can be viewed so quickly on a user’s device is that the entire broadcast is not downloaded all at once; instead, the first few segments are downloaded, and then the rest follow in sequence. [ 48 ] Unlawful streaming services require several technological components.

First, a " “source feed” " is needed – in this case, the live broadcast is captured and uploaded to be ready for streaming. Second, " “streaming infrastructure” " is required to distribute the pirated material to viewers. This involves both hardware and software components, including one or more " “streaming servers” " and a " “streaming platform” " . [ 49 ] Many legal streaming services provide subscribers access to copyright material that the streaming service has obtained under licence. Netflix is an example.

However, many illegal streaming sites or platforms provide access to pirated material. [ 50 ] Two types of illegal streaming platforms are commonly available: (

i) open web piracy sites that are typically free and publicly available, which derive their revenues from advertising, and (ii) unauthorized subscription services that typically provide a higher quality copy of the pirated material as well as easier access to subscribers.

Subscriptions to unauthorized subscription services are generally much cheaper than the fees for the services provided by the ISPs, because the pirates do not pay any licencing fees or incur any production costs. [ 51 ] As discussed above, streaming involves breaking a video (or audio) file down into small media files, referred to as segments (the " “pages” " referred to in the Plaintiffs’ analogy). All of these segments can be located on a single Streaming Server or duplicated and distributed across multiple different Streaming Servers within the Streaming Infrastructure.

One advantage of distributing pirated material in this way is that segments can be provided to the end user in the most efficient means possible, to avoid overloading one component which could cause delays or interruptions. [ 52 ] The evidence shows that while a streaming platform can be operated by the same pirate as the streaming infrastructure, in most cases they are not.

A single streaming infrastructure, however, can be accessed by a number of different streaming platforms. [ 53 ] The end user – whether seeking legitimate access or unlawful streaming content - is typically unaware of how the information is routed between the source and their device. However, a key element in this case is the ISPs’ capacity to identify and block users’ access to streaming platforms that are unlawfully streaming copyright-infringing content, and thus a brief description of how site-blocking works is in order.

This requires, first, a further description of how traffic is routed from the customer through the ISP to the Internet. [ 54 ] ISPs provide access to the Internet over several different types of connections. The

section of the infrastructure that connects to the residential customer is referred to as the " “last-mile” " connection. In Canada, there are generally two types of ISPs: those that own the last-mile infrastructure (referred to as " “facilities-based providers” " or " “common carriers” " ), and those that lease the last-mile infrastructure (known as " “resellers” " ). [ 55 ] At a high level, the infrastructure ISPs use to connect customers to the Internet involves four elements: 1 . Customer equipment – often a home router, that connects various devices in the home to the network; 2 .

Last-mile/access loop – the last-mile connection from the customer’s residence to the access/transportation network owned or leased by the ISP; 3 . The access/transportation network – the system of routers that aggregate and route the traffic received from the last-mile/access loops and transport that traffic onwards to the core network; 4 . The core network – which contains a further set of routers that aggregate and route the traffic to and from multiple access/transportation networks.

This network includes the DNS servers and other high-level service infrastructures that are essential to the functioning of the Internet as a system of systems. [ 56 ] An ISP’s core network then connects to the Internet, which itself is a system comprised of a series of other networks through which traffic is routed to enable the simultaneous downloading and uploading of information. An ISP’s infrastructure will include both aggregating routers and core routers. This is key because these are the focal points of the site blocking efforts.

Although the technical process is somewhat different as between common carrier ISPs and reseller ISPs, the differences are not significant for the purposes of this case, because both types of ISPs can and do engage in blocking of certain traffic. D. Site Blocking [ 57 ] As stated above, site blocking is a method used to deter or prevent access to streaming platforms that provide access to copyright- infringing and other types of material, and to prevent incoming traffic from causing problems for users or affecting the ISPs network. There are three main types of site-blocking approaches for ISPs: 1 .

DNS blocking – which disconnects the link between a domain (or subdomain) and its corresponding IP address in the DNS service; 2 . IP address blocking – which blocks traffic to and from a specified IP address; and 3 . URL (Uniform Resource Locator) path blocking – which prevents traffic to and from very specific locations on a website or other Internet service.

(1) DNS Blocking [ 58 ] The DNS (domain name system) acts as a necessary bridge between a domain name and the corresponding IP address, and it is

therefore possible for an ISP that hosts DNS servers to block its subscribers from accessing a particular website. Canadian common carriers and resellers that have DNS servers already possess the capacity to carry out this sort of blocking. [ 59 ] However, it is important to note that while a domain or subdomain typically points to a single IP address at any given time, many domains or subdomains can point to the same IP address because a single server can host multiple websites.

(2) IP Address Blocking [ 60 ] This technique focuses on the problematic IP address rather than the domain name. This method can be implemented at the core outer layer of an ISP’s infrastructure. It involves configuring the core router(

s) so that they will not route the users’ traffic to a particular IP address. Instead, when a subscriber tries to access that address, the router will send the query to " “nowhere” " rather than routing it to its original destination. This is referred to as " “blackholing” " because the request is sent into a " “blackhole” " rather than the IP address.

The process also works in reverse, to prevent malicious content from reaching a particular subscriber’s IP address. [ 61 ] The evidence shows that all of the Third Party ISPs regularly use this method to secure their network from malicious content or activity linked with particular IP addresses. This can involve blocking data transfers and attacks from these IP addresses for periods of up to a few hours. All of the ISPs monitor their networks on a continuous basis to detect problematic traffic and to try to prevent them from affecting the service to other customers.

One typical situation is known as a " “Distributed Denial of Service” " (DDOS) attack. A DDOS attack involves a systematic effort to overwhelm a particular customer’s internet service in order to deny them access.

ISPs deal with such incoming attacks on a daily basis, and in some cases, this requires disabling a customer’s access in order to prevent the DDOS attack from taking down an entire node on an ISP’s system. [ 62 ] As will be discussed in more detail below, ISP core routers can only block a certain number of IP addresses at one time, due to capacity limits. |||||||||||||||||||||||||||||||||||||||||||||||| |||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||

(3) URL Path Blocking [ 63 ] URL Path blocking allows for more specific traffic blocking than the other two methods; it allows an ISP to deny a specific path within a domain without blocking access to other pages within the same domain. To return to an example used earlier, this would allow an ISP to block customers’ access to www.NHL.com/scores, without cutting off access to www.NHL.com or any other pages within that domain. [ 64 ] ISPs that are part of Project Cleanfeed Canada use URL blocking to prevent subscribers in Canada from accessing non-Canadian websites associated with child pornography.

This group of ISPs includes Bell, Rogers, Sasktel, Shaw, Telus and Videotron. The evidence shows that Bell updates the list of URLs that are blocked as part of Project Cleanfeed on a daily basis. [ 65 ] At the time of the hearing, not all Third Party ISPs had the capacity to implement URL path blocking. E. The GoldTV decisions

(1) GoldTV FC [ 66 ] As noted earlier, the Plaintiffs seek to build upon the order granted in the GoldTV FC case, and it will be useful to summarize that decision as well as the Court of Appeal’s ruling that upheld the order.

Both decisions are discussed in more detail below, in the context of the analysis of the current parties’ specific arguments. [ 67 ] In GoldTV FC , a case involving the same Plaintiffs and Third Party Respondents as the present matter, the Plaintiffs sought an interlocutory injunction to force the Third Party Respondents to block customers from accessing copyrighted broadcasts of television programs. The Plaintiffs filed a statement of claim against two unnamed defendants doing business as " “goldtv.biz” " and " “goldtv.ca” " (GoldTV).

In view of the steps taken by these defendants to remain anonymous and avoid legal processes, the Plaintiffs also sought an interim injunction for 14 days, as well as an interlocutory injunction. Both were granted. [ 68 ] Despite the issuance of these orders, some of the GoldTV services remained in operation. The unnamed defendants had not filed any statement of defence or otherwise participated in the underlying action.

As a result, the Plaintiffs then sought an interlocutory mandatory injunction aimed at the Third Party Respondent ISPs, requiring them to block Canadian customers from gaining access to the unauthorized broadcasts through the GoldTV services, at a specific list of IP addresses and Web domain names. [ 69 ] Several of the Third Party Respondents consented to the order, but TekSavvy and Distributel objected, and both filed records before the Court. Telus also made submissions at the hearing.

TekSavvy argued that the Court should not exercise its jurisdiction to grant the injunction for a number of reasons, including that Parliament had deliberately not adopted a site-blocking regime when it amended the Copyright Act , RSC 1985, c C-42 in 2012.

It also argued that site-blocking fell within the specialized expertise of the CRTC, which had indicated that such measures should only be available in extraordinary circumstances. [ 70 ] TekSavvy noted that in a 2018 decision, the CRTC had rejected a request from the FairPlay Coalition to require ISPs to block access to websites and services engaged in copyright piracy (Telecom Decision 2018-384). TekSavvy’s general position was that the Plaintiffs’ request had to be considered in the broader context of the Canadian debate on site blocking then underway both in Parliament and before the CRTC.

It urged the Court to leave it to those bodies to address the question. [ 71 ] In addition, TekSavvy argued that the Plaintiffs had not met the test to obtain a mandatory interlocutory injunction. A very brief

summary of this aspect of the decision will suffice here. The Court found that it had jurisdiction to grant the requested injunction, noting that orders against third parties were sometimes available in Canadian law. It also noted that courts in the UK had granted similar orders

based on both a specific legislative provision relating to online piracy and their more general jurisdiction to grant interlocutory relief – a grant of jurisdiction that was broadly similar to that of the Federal Court. [ 72 ] The Court concluded that the Plaintiffs had met the usual three-part test for an interlocutory injunction. [ 73 ] On the first element, the Court found that the Plaintiffs had demonstrated a strong prima facie case of copyright infringement.

Turning to the next two elements, whether the Plaintiffs had established irreparable harm, and where the balance of convenience lies, the Court applied the guidance from the UK jurisprudence in identifying and assessing the relevant considerations. [ 74 ] The Court found that the Plaintiffs had established irreparable harm. First, the copyright infringement had continued even after the interim and interlocutory injunctions were granted, and the evidence did not show that less intrusive means of addressing it were likely to be effective.

Second, there was a strong prima facie case of ongoing copyright infringement and the Defendants were unknown. The Court found that the financial impact on the Plaintiffs therefore constituted irreparable harm. [ 75 ] Turning to the third element, the Court found that the balance of convenience favoured the Plaintiffs. Applying the factors set out in the UK jurisprudence, described in more detail below, the Court was satisfied that the site-blocking order would be effective without interfering in customers’ access to lawful content, and that it would not impose an undue burden on the Third Party Respondents.

The Court was also satisfied that adequate safeguards could be put in place to prevent abuse of the order. [ 76 ] The Court therefore granted the order, although it made certain amendments to the version proposed by the Plaintiffs. In essence, the terms of the order directed the Third Party Respondents to take steps to block access to a specific list that included two website domain names, ten subdomains and eleven IP addresses. The order could be amended on motion by any party, and any individual whose access was blocked could apply to vary it.

Other technical details included in this order are discussed below in connection with the analysis of the Order presently requested. [ 77 ] Since the initial GoldTV FC decision, the order has been amended three times, by orders dated December 20, 2019, July 10, 2020 and November 13, 2020. When the present case was argued, the Plaintiffs had brought a motion to seek a further amendment, but the matter had not been heard.

(2) GoldTV FCA [ 78 ] In a decision issued on May 26, 2021, the Federal Court of Appeal dismissed the appeal and affirmed the order granted by Justice Gleeson.

The Court of Appeal acknowledged that the order was unprecedented in Canada, but found that it was validly issued and should be upheld. [ 79 ] The Court of Appeal addressed the three main issues TekSavvy raised on the appeal, namely that: the Federal Court did not have the jurisdiction to award a site-blocking injunction; the decision below failed to grapple with the issue that the order violated freedom of expression; and the Federal Court should not have granted the order on the facts of the case. [ 80 ] On the first point, the Court of Appeal found that sections 4 and 44 of the Federal Courts Act , R.S.C. 1985, c.

F-7 , granted the Federal Court the jurisdiction to award a site-blocking injunction, and this was reinforced by subsection 34(1) of the Copyright Act , which includes injunctive relief among the panoply of remedies for copyright infringement.

In support of this conclusion, it cited the following passage from Google Inc v Equustek Solutions Inc , 2017 SCC 34 [ Google ] at paragraph 23 : " “[t]he powers of courts with equitable jurisdiction to grant injunctions are, subject to any relevant statutory restrictions, unlimited.” " [ 81 ] The Court of Appeal rejected TekSavvy’s arguments that the rights and remedies under the Copyright Act are exhaustive and that Parliament’s choice to adopt a " “notice and notice” " regime instead of the " “notice and takedown” " approach adopted in the United States indicated that it did not wish to grant copyright owners the more powerful remedy of site-blocking order against ISPs.

The Court of Appeal also rejected the claim that such orders were foreclosed by

section 36 of the Telecommunications Act because that provision guarantees net neutrality and bars ISPs from blocking access to websites without an order from the CRTC. The Court of Appeal found that " “the general wording of

section 36… does not displace the Federal Court’s equitable powers of injunction, including the power to impose a site-blocking order” " (para 36). [ 82 ] On the second question, the Court of Appeal rejected the argument that the order should be set aside because the Federal Court failed to address the freedom of expression issues raised by the case.

Applying the approach adopted in Google , the Court of Appeal found that it was " “not necessary for the Judge to engage in a detailed Charter rights analysis separate and distinct from the balance of convenience analysis that is already to be considered” " (para 53). The Court of Appeal found that the decision under appeal adequately considered the freedom of expression considerations. [ 83 ] Turning to the question of whether it was just and equitable to grant the injunction in the circumstances of the case, the Court of Appeal found that that there was no reversible error and thus upheld the decision.

Once again, the details of this analysis are discussed in the next sections, and so it is not necessary to review them here. III. Issues [ 84 ] The issues in this case can be distilled to three questions: 1 . Should the interlocutory injunction be refused because the process was unfair to the Third Party Respondents? 2 . Have the Plaintiffs met the test to obtain a mandatory interlocutory injunction for a dynamic site-blocking order? 3 . If so, on what terms should the Order be issued? [ 85 ] A number of other issues are nested within the second and third questions, and these will be discussed below.

IV. Analysis A. The procedure was fair to the Third Party Respondents [ 86 ] The Third Party Respondents argued that the Plaintiffs pursued a deliberate strategy to place them at a disadvantage in responding to the motion, and urged the Court not to reward such behaviour. They say that there were several alternatives available to the Plaintiffs, including obtaining a consent order that would have applied only to the " “tied” " ISPs, or seeking the agreement of all of the ISPs to undertake a test of the proposed blocking system in order to assess its feasibility and effectiveness.

The Third Party Respondents urged the Court to refuse to grant the relief in the absence of a good faith pre-litigation effort to pursue a commercially reasonable business process before involving innocent third party ISPs in costly, ostensibly urgent litigation. [ 87 ] The discussion of this point begins with a brief review of the procedural history of the case, followed by a

summary of the arguments and then an analysis of the merits of this claim.

(1) Procedural History [ 88 ] The Plaintiffs filed a Notice of Motion seeking an interlocutory injunction that would be binding on the Third Party Respondents on July 7, 2021. Their Motion Record was voluminous, including public and confidential material, and several affidavits. [ 89 ] On August 17, 2021, the Court held a Case Management Conference to discuss a

schedule and timing with the parties. The Plaintiff noted that their materials had been duly served on the parties, and that because the NHL season was scheduled to commence on October 2, 2021, they said the hearing should be convened without delay. [ 90 ] Several of the Third Party Respondents objected, arguing that the Plaintiffs had chosen a strategy of serving a huge motion record during the of summer holidays, and then seeking an urgent hearing, because that would prejudice the Third Party Respondents who sought to oppose the request.

The parties were directed to discuss the issue and to return to the Court with specific scheduling proposals. That was done by late August, and following consideration of the parties’ respective proposals, the Court issued a scheduling order on September 14, 2021, setting out a timeline for the motions for leave to intervene, for filing evidence and submissions by the parties, and setting the matter down for hearing.

The scheduling order was subsequently amended and two other Case Management Conferences were convened to address several other matters in advance of the hearing. [ 91 ] The matter was heard over three days commencing on November 23, 2021. At the end of the hearing, submissions were received from the Plaintiffs and several of the Third Party Respondents regarding the specific terms of a possible Order.

The parties were asked to discuss the various proposed changes to determine whether they could reach agreement on some points (as had been done in GoldTV FC ); failing that, the Third Party ISPs were asked to return with a consolidated version of their proposed Order, showing where they agreed and diverged. That was done and a continuation of the hearing was held on January 7, 2022, to hear from the parties regarding their proposed changes to the Order.

(2) The Parties’ Arguments [ 92 ] The unfairness arguments involve three related claims, connected to the strategy adopted by the Plaintiffs, the fact that the relief they seek will, in reality, be a final remedy, and the alternatives that were available to the Plaintiffs. [ 93 ] First, the Third Party Respondents repeat their arguments made at the August 17, 2021 Case Management Conference: they assert that the procedure followed by the Plaintiffs was a deliberate strategy designed to place the responding parties in an untenable position.

They argue that the Plaintiffs had taken many months to assemble a significant documentary record, as evidenced by the fact that Rogers retained a company which began to monitor for copyright infringement as of January 30, 2021. The Plaintiffs’ record was then served and filed in early summer, with a request for an urgent hearing.

The Third Party Respondents note that this mirrors the approach the Plaintiffs followed in the GoldTV FC case, and they urge the Court not to sanction it. [ 94 ] Next, the Third Party Respondents point out that the remedy the Plaintiffs are seeking is, in effect, a final Order because it is highly unlikely they will ever pursue the unnamed defendants.

This is another similarity with the GoldTV FC case, where at the time of the hearing in this matter, the Plaintiffs were seeking to extend and make permanent the interlocutory injunction, while at the same time staying the underlying proceedings against the defendants in that matter.

The Third Party Respondents argue that this reality makes the interlocutory injunction process unsuitable, because it denies them the usual discovery rights and other procedural safeguards that are part of the regular trial process. [ 95 ] Related to this, the Third Party Respondents submit that the novel remedy sought by the Plaintiffs could have been obtained, on consent, from the " “tied ISPs” " who represent approximately 70% of the residential retail Internet connection market in Canada.

If the Plaintiffs had followed this approach, they could have tested the technical systems they now seek to impose on the Third Party Respondents, to assess their ease of use and accuracy. This would have also enabled the Plaintiffs to gather evidence about the effectiveness of a dynamic site blocking order.

The Third Party Respondents contend that this would have been a fairer procedure that would have diminished the impact on them because it would have allowed for a period of testing and refinement of the dynamic blocking procedures. [ 96 ] Building on the last submission, the Third Party Respondents also say that the Plaintiffs should have proposed that the parties work together to identify feasible ways of implementing the novel order sought by the Plaintiffs, including by jointly developing technical solutions and engaging in a period of testing and validation.

This approach would have enabled many of the Third Party Respondents’ concerns to be addressed, and would have allowed the parties to present a robust evidentiary record to the Court. [ 97 ] The Third Party Respondents ask the Court to deny the Plaintiffs the relief they seek, to discourage their strategy of filing

voluminous materials and then pressing for an urgent hearing. They also assert there were effective alternative approaches available that would have enabled to Plaintiffs to obtain most of what they seek without imposing such undue burdens on the innocent Third Party Respondents. [ 98 ] In a related but separate submission, Distributel argued that the Plaintiffs had known about the problem of copyright piracy for years but it waited until now to bring this motion.

Distributel argued that this delay should be sufficient to disentitle the Plaintiffs to the extraordinary interlocutory relief they seek. [ 99 ] The Plaintiffs deny that they have followed an unfair procedure. They argue that the question must be understood in light of the rapidly evolving context, in particular the changes in the way online piracy of copyright content operates in the real world. The fact that the context has changed so rapidly has meant that the Plaintiffs’ approach to protecting their copyright must evolve to keep pace.

In this case, that has meant going from earlier efforts to enforce their rights (see, for example: Bell Canada v 1326030 , 2016 FC 612 , aff’d 2017 FCA 278 ; Bell Canada v Vincent Wesley dba MtlFreeTV.com , 2016 FC 1379 , and see also 2018 FC 66 , 2018 FC 861; Bell Canada v Red Rhino Entertainment Inc ., 2019 FC 1460 ; Bell Canada v Lackman , 2018 FCA 42 ), to seeking and obtaining a static site blocking order in 2019, and now seeking a dynamic site blocking order in 2021. [ 100 ] In response to the Third Party Respondent’s arguments, the Plaintiffs acknowledge that the preparation of their motion record took some time, but they say that is appropriate in light of the technical nature of the evidence, and the novelty of the remedy they seek.

Their record was served in early July, and the Third Party Respondents had months to prepare their cases.

The Plaintiffs note that several of the Third Party Respondents cross-examined the Plaintiff’s witnesses, and that they also filed extensive evidence about their businesses and the difficulties associated with implementing the type of order being sought. [ 101 ] The Plaintiffs also argue that the alternative procedures proposed by the Third Party Respondents are not realistic, because an action seeking default judgment against the John Doe defendants would have no practical impact on anonymous offshore internet pirates who have taken such elaborate steps to hide their identities and evade legal processes.

The Plaintiffs submit that they have followed the accepted procedure for seeking an interlocutory injunction, which is a legal remedy that is undoubtedly available to them in Canadian law.

(3) Discussion [ 102 ] While I agree with the Third Party ISPs that the Plaintiffs could have followed a different approach, in the end I am not persuaded that the process – as it actually unfolded – was unfair to any of the Third Party Respondents or that it impaired their ability to mount a full answer to the motion. [ 103 ] The procedural history outlined above is a full answer to the Third Party ISPs’ arguments. Whether the Plaintiffs could or should have followed a different, more collaborative, approach is not a question for the Court.

Rather, the only issue is whether the Plaintiffs should be denied a mandatory interlocutory injunction because the process was unfair in the circumstances ( Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 54 , 56). [ 104 ] In this case, the Plaintiffs filed a substantial record in early July 2021. The matter was not heard until late November 2021, and in the intervening period, the Third Party ISPs had the opportunity to gather and present their own evidence, and all parties had the opportunity to conduct cross-examination on the affidavits that were filed.

All parties subsequently had the chance to present their submissions to the Court, and to present further detailed arguments regarding their respective positions on the terms of the Order that might be issued. By any measure, this meets that standards of procedural fairness. [ 105 ] It is true that the interlocutory injunction procedure does not entail the full panoply of procedural rights that an action followed by a trial allows. On the other hand, that procedure also does not involve the delay and cost associated with a full trial of a matter.

In addition, none of the Third Party Respondents explained how the Plaintiffs could realistically have pursued the unnamed Defendants.

As noted by Justice Locke in GoldTV FCA at paragraph 42 : Where, in an action against an anonymous defendant, a court can be convinced that said defendant has and will maintain its anonymity and ignore an injunction against it, it would seem pointless and unfair to require that the plaintiff jump through certain hoops and wait a certain time to confirm what it already knows, and the court already accepts, before seeking an injunction against a third party. [ 106 ] In my view, on the evidence before the Court, these comments apply to the situation facing the Plaintiffs.

The additional procedural avenues, and costs and delay associated with bringing an action to trial were not needed to ensure the process was fair to the Third Party Respondents.

The actual proceeding in this case, as it unfolded, allowed them almost six months to obtain and present evidence and arguments and to test the Plaintiffs’ evidence. [ 107 ] Given that this case is about unlawful streaming of live NHL games, it made sense to time the matter so that the matter could be heard and decided during the current NHL season. [ 108 ] As a final note, I observe that several of the Third Party Respondents commented on the terms of the proposed draft Order, and included in these submissions was a request that they be given a minimum of three months notice of any motion to extend any order granted.

This is an indication of the time these parties thought would be needed to mount an adequate reply to such a request, and it is further confirmation that they were not unfairly prejudiced by the procedure followed in this case. [ 109 ] For all of these reasons, I cannot accept the argument of the Third Party Respondents that the injunction should be refused because the process was unfair to them. We turn next to the merits of the Plaintiff’s case. B. The Plaintiffs have met the test for an interlocutory injunction

[110] The legal test that applies to this case was confirmed in GoldTV FCA: [60] The legal test applicable in a case like this was discussed in Google at paragraph 25: RJR — MacDonald Inc. v.

Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311 [RJR –MacDonald], sets out a three-part test for determining whether a court should exercise its discretion to grant aninterlocutory injunction: is there a serious issue to be tried; would the person applying for the injunction sufferirreparable harm if the injunction were not granted; and is the balance of convenience in favour of granting theinterlocutory injunction or denying it. The fundamental question is whether the granting of an injunction is justand equitable in all of the circumstances of the case.

This will necessarily be context-specific. [61] It is relevant here to reproduce the following comments from the Supreme Court in R. v.

Canadian Broadcasting Corp.,2018 SCC 5, [2018] 1 S.C.R. 196, at para. 13 [CBC], after it described the test in RJR — MacDonald: This general framework is, however, just that — general. (Indeed, in RJR — MacDonald, the Court identified two exceptionswhich may call for “an extensive review of the merits” at the first stage of the analysis.) In this case, the parties have atevery level of court agreed that, where a mandatory interlocutory injunction is sought, the appropriate inquiry at the firststage of the RJR — MacDonald test is into whether the applicants have shown a strong prima facie case.

I note that thisheightened threshold was not applied by this Court in upholding such an injunction in Google Inc. v. Equustek Solutions Inc.In Google, however, the appellant did not argue that the first stage of the RJR — MacDonald test should be modified.Rather, the appellant agreed that only a “serious issue to be tried” needed to be shown and therefore the Court was not askedto consider whether a heightened threshold should apply.

By contrast, in this case, the application by the courts below of aheightened threshold raises for the first time the question of just what threshold ought to be applied at the first stage wherethe applicant seeks a mandatory interlocutory injunction. [111] The fundamental question is whether it is "“just and equitable in all of the circumstances”" that an injunction should issue.

This isnecessarily context-specific (Google at para 25). [112] In GoldTV FC, the Court accepted that it was appropriate to seek guidance from relevant United Kingdom jurisprudence on site-blocking orders, in particular the factors set out in Cartier International AG v British Sky Broadcasting Ltd., [2016] EWCA Civ 658[Cartier]. This was endorsed by the Federal Court of Appeal in GoldTV FCA (at paras 76-77), and so I will consider these principles inthe analysis that follows. [113] The following

summary of the Cartier factors borrows from GoldTV FC at paragraph 52 and GoldTV FCA at para 74. The factorsto be considered are: A. Necessity –the extent to which the relief is necessary to protect the plaintiff’s rights. The relief need not be indispensablebut the court may consider whether alternative and less onerous measures are available; B. Effectiveness –whether the relief sought will make infringing activities more difficult to achieve and discourage Internetusers from accessing the infringing service; C.

Dissuasiveness –whether others not currently accessing the infringing service will be dissuaded from doing so; D. Complexity and Cost –the complexity and cost of implementing the relief sought; E. Barriers to legitimate use or trade –whether the relief will create barriers to legitimate use by unduly affecting theability of users of ISP services to access information lawfully; F. Fairness –whether the relief strikes a fair balance between fundamental rights of the parties, the third parties and thegeneral public; G.

Substitution –the extent to which blocked websites may be replaced or substituted and whether a blocked website maybe substituted for another infringing website; and H.

Safeguards –whether the relief sought includes measures that safeguard against abuse. [114] In the circumstances of this case and in light of the wider public policy issues raised by the Order sought, I find that the applicationof certain of these factors must be adapted to take into account the Canadian context regarding the regulation of the Internet. [115] Because of the GoldTV decisions, the parties largely agree that this is the legal framework that applies. They disagree, however,about whether the test has been met.

In addition, the Third Party ISPs and CIPPIC urge caution in any reliance on jurisprudencedeveloped elsewhere in light of the different legislative and policy contexts and because in several of these other cases the ISPs eitherconsented to, or did not oppose, the granting of the order. [116] An introductory comment regarding the discussion that follows is necessary.

Some of the evidence presented by the partiesinvolves highly confidential matters, relating both to the means by which the Plaintiffs identified the piracy and determined that blockingcould be done, and also to the business operations and plans of the Third Party ISPs. Although I have carefully reviewed all of theevidence in the record, the discussion that follows will not delve into many of the specific details on either point, because it is notnecessary to do so.

This will protect commercially sensitive information and o avoid providing a roadmap for individuals who arecurrently or who may wish to become involved in unauthorized streaming activity. [117] I now return to the elements of the test for interlocutory relief.

(1) Serious Issue [ 118 ] The Plaintiffs bear the onus of demonstrating that they have a " “strong prima facie case” " . This involves a more extensive review of the merits of the case than is usual in an interlocutory injunction proceeding.

In the words of the Supreme Court of Canada in CBC : " “the application judge must be satisfied there is a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice” " (para 17). [ 119 ] There is substantial evidence regarding the claim by Rogers Media that the unnamed Defendants are breaching its copyright in live NHL broadcasts.

The Third Party ISPs dispute this, however, and submit that even if Rogers is found to meet the test for serious issue, the other Plaintiffs have not filed any evidence to support their claims of copyright infringement.

They argue that there is no basis to extrapolate from the data demonstrating infringements of Rogers’ rights to conclude that any of the other Plaintiffs are experiencing similar infringements, and thus there is no basis to find that the other Plaintiffs have established a serious issue. [ 120 ] The Plaintiffs’ evidence shows that they hold copyright in the broadcasts of live NHL games, as described in the

summary set out earlier. The details of the rights that each of the Plaintiffs hold in the live NHL broadcasts is set out in the affidavits and exhibits of their corporate representatives, and this issue is not in dispute, so it is not necessary to describe the distribution of copyright in the various broadcasts in greater detail. Having reviewed the evidence, I find there is no question that the various Plaintiffs hold the copyright in respect of virtually all broadcast distribution of live NHL games in Canada, including TV broadcasting and online streaming services.

With this established, we turn to the evidence of copyright infringement. [ 121 ] Rogers Cable, on behalf of Rogers Communications, retained a company called Friend MTS Limited (FMTS) to monitor the Internet and identify sites and services providing unauthorized access to live streams of certain NHL live broadcasts. FMTS has provided evidence about similar monitoring in previous site-blocking cases in the United Kingdom, Ireland and Argentina. FMTS offers various technological solutions to television broadcasters and copyright holders to protect and enforce their rights against pirates.

Its services include monitoring and reporting on unauthorized streams, as well as sending takedown notices and providing site blocking solutions. [ 122 ] In this case, Rogers Communications asked FMTS to monitor unauthorized streams of live broadcasts on four television stations owned by Rogers, namely Sportsnet One, Sportsnet Ontario, Sportsnet West and Sportsnet Pacific, starting on or around January 30, 2021. [ 123 ] FMTS used various proprietary tools to identify, capture and analyze Streaming Servers providing unauthorized access to the monitored live NHL broadcasts in Canada in real time.

Between January 30, 2021 and May 30, 2021, FMTS identified a total of 53,433 instances (referred to as " “incidents” " ) where streaming servers provided unauthorized access to the live NHL games broadcast on the stations they monitored. Almost |||| of these instances originated from streaming servers known to be associated with copyright piracy. [ 124 ] These incidents originated from 3,957 distinct unauthorized streaming servers, with a mean of 822 distinct IP addresses per week.

The monitoring showed that the IP addresses of the unauthorized streaming servers change on average every three and a half weeks, with approximately half of the IP addresses appearing for only a single week.

Approximately 95% of the Streaming Servers were physically located outside of Canada. [ 125 ] This is persuasive evidence that the unidentified Defendants are engaged in infringement of Rogers’ copyright in its broadcast of these live NHL games. [ 126 ] Bell and TVA filed additional evidence, including the affidavit of Steven Rogers, a former police officer who now provides Internet investigation and digital forensic analysis services. Mr.

Rogers’ affidavit details his efforts to obtain access to pirated broadcasts of live NHL games, and to compare these with live broadcasts on one of the Plaintiff’s specialty sports channels. Although this evidence does not cover as long a time-frame nor as many incidents of unlawful streaming as that of FMTS in regard to Rogers, it does demonstrate that unlawful streaming services are providing access to Bell and TVA (as well as Rogers) content. Mr. Rogers confirms that he was able to gain access to streaming services that provided access to unauthorized versions of the live broadcasts.

He explains how easy it was for him to do this, and describes the quality of the pirated content, noting that there was either a very short or no delay in the pirated stream (as compared with the legitimate feed) and that some of the content was available in the same high definition format as the authorized broadcast. [ 127 ] In addition, affidavits were filed by senior employees of Rogers, Bell and Videotron that confirmed that their respective customers were accessing content on one or more of the unauthorized streaming platforms corresponding to the IP addresses identified by FMTS during its monitoring of unauthorized streaming of live NHL games.

To be clear, the monitoring done by the Plaintiffs did not identify specific customers, but rather confirmed that at the relevant periods identified by FMTS, thousands of their regular internet customers were accessing unauthorized streams of live NHL games. Although the evidence is not entirely clear on this point, presumably these customers resorted to the unauthorized streaming services because their subscription did not give them access to the game(

s) they wanted to watch. [ 128 ] To give a sense of the scale of the problem, Rogers’ evidence shows that between March 16 and April 24, 2021, an average of over 20,000 Rogers Cable Internet subscribers accessed known illegal IPTV services on a daily basis. Between May 10 and May 23, 2021, over 43,000 Rogers Internet subscribers accessed the unauthorized IPTV services on a daily basis.

Bell Canada’s witness reported that during one evening when a playoff game between Montreal and Toronto was broadcast (a highly popular event) at least 25,000 Bell Canada Internet subscribers accessed the unauthorized streaming services identified in the FMTS reports.

Similarly, Videotron reports that its monitoring showed that during the broadcast of NHL live games between May 14, 2021 and June 1, 2021, a large number of its subscribers relied on the unauthorized streaming servers identified by FMTS, generating a high volume of traffic on their system. [ 129 ] Taken together, this evidence demonstrates each of the respective Plaintiffs are experiencing unlawful streaming of their broadcasts of live NHL games.

There is no question that this amounts to breach of their copyright. [ 130 ] As noted above, the Plaintiffs hold the exclusive right to communicate to the public all live NHL games through TV broadcast and

online streaming. Pursuant to

section 3 of the Copyright Act , the Plaintiffs have the sole right to broadcast this content, or to authorize its communication to the public. Under section 27(1) of the Copyright Act , any person who communicates this content to the public without the owners’ consent is infringing the Plaintiff’s copyright. [ 131 ] The evidence shows that the unnamed Defendants are responsible for the unauthorized communication to the public in Canada of the Plaintiffs’ broadcasts of live NHL games.

I agree with the Plaintiffs that the Defendants’ actions do not fall within the statutory exception limiting the liability of those who only provide the " “means” " of telecommunication, set out in subsection 2.4(1) of the Copyright Act . The evidence shows that the Defendants are not merely the conduit of the transmission of the copyright material; rather, they have pirated it and arranged for members of the public in Canada to gain access to it through the infrastructure that the Defendants have set up.

This involves deliberate and elaborate efforts – involving substantial investments – to capture and stream the Plaintiffs’ copyright material. [ 132 ] In

summary on this point, and going back to the governing test, I am satisfied, based on a careful and detailed review of the evidence, that the Plaintiffs have demonstrated a very strong likelihood that they would be successful at trial in establishing that the Defendants have breached their copyright. Indeed, the evidence demonstrates that the Defendants are breaching the Plaintiffs’ copyright in an ongoing and flagrant fashion. [ 133 ] It bears repeating that the Third Party ISPs are mere conduits and are not in any way involved in the activities that amount to copyright infringement.

Their only involvement is that the unlawful streaming flows to viewers in Canada through the services they provide.

(2) Irreparable Harm [ 134 ] The term " “irreparable harm” " refers to the nature of the harm rather than its scope or reach; it is generally described as a harm that cannot adequately be compensated in damages or cured ( RJR – MacDonald at p 341).

It has often been stated that this harm cannot be based on mere speculation; it must be established through evidence at a convincing level of particularity (see Glooscap Heritage Society v Canada (National Revenue) , 2012 FCA 255 at para 31 ; Gateway City Church v Canada (National Revenue) , 2013 FCA 126 at paras 15-16 ; Newbould v Canada (Attorney General) , 2017 FCA 106 at paras 28-29 ). In addition, the evidence must demonstrate a high likelihood that the harm will occur, not that it is merely possible.

This will obviously depend on the circumstances of each case (see the discussion in Letnes v Canada (Attorney General) , 2020 FC 636 at paras 49-58 ). [ 135 ] However, equitable relief must retain its necessary flexibility and it must be admitted that some forms of harm do not readily admit of proof, especially in interlocutory proceedings where speed is of the essence and the ability to prepare a complete evidentiary record is necessarily somewhat limited.

What is required, at the end of the day, is a " “sound evidentiary foundation” " for the assessment of the harm; mere assertions or speculation by an applicant will never be sufficient (see Vancouver Aquarium Marine Science Centre v Charbonneau , 2017 BCCA 395 at para 60 ; Ahousaht First Nation v Canada (Fisheries, Oceans and Coast Guard) , 2019 FC 1116 at paras 87-88 ). [ 136 ] In GoldTV FC , Justice Gleeson analyzed the necessity factor from Cartier under this branch, and this was not found to be an error by the Federal Court of Appeal.

I will therefore follow this approach, although I acknowledge there is a degree of overlap between the consideration of this element and the broader balance of convenience factors. [ 137 ] I will review the parties’ submissions on financial harms and necessity, and then discuss whether the Plaintiffs have met the test for irreparable harm. (

a) Financial Harm [ 138 ] The crux of the Plaintiffs’ argument on this ground is that they are losing subscribers and potential advertising revenue because of the rampant and egregious ongoing breach of their copyright due to the unauthorized streaming of their copyright content in live NHL games. There are several inter-related facets to their argument. [ 139 ] First, NHL hockey is very popular among Canadian viewers. NHL games are the most watched live sporting events in Canada, and some games can attract a very large audience.

For example, it is estimated that 11 million people watched game seven of the playoff series between Montreal and Toronto in the first round of the 2021 playoffs. Each of the Plaintiffs have invested significant amounts to obtain the rights to broadcast these games and continue to make ongoing investments to maintain the infrastructure needed to meet their customers’ needs.

Their evidence shows that subscribers to their specialty sports channels are particularly interested in gaining access to live broadcasts of sporting events, in particular NHL games. [ 140 ] Second, because almost all NHL games are watched in " “real time” " (as opposed to other programming which is often recorded and accessed at different times), the Plaintiffs have had to invest in the infrastructure needed to meet spikes in demand for Internet services during live broadcasts.

In addition, because subscribers cannot fast-forward through a live broadcast, advertisers know exactly how many viewers will be seeing their ads during live NHL games, making these advertising spots particularly profitable for the Plaintiffs. It also drives revenue for their sport-related programming broadcast just before and after NHL games. [ 141 ] Third, the Plaintiffs claim that ongoing unauthorized streaming of their content is causing an ongoing loss of customers and will permanently alter consumers’ behaviour if left unchecked.

The Plaintiffs acknowledge that it is impossible for them to quantify with precision the number of subscribers they have lost (or never gained) as a result of the ongoing piracy of their content, but they argue that the evidence shows that piracy is a substantial problem in Canada that has an undeniably negative effect on them. [ 142 ] In addition, the Plaintiffs point to the obvious fact that the harm arises in a context where a large number of unidentifiable defendants have taken active steps to remain anonymous, and who could be located anywhere in the world.

Their chances of ever recovering any damages from these parties is slim, at best ( GoldTV FC at para 66 ; GoldTV FCA , para 71 ).

[ 143 ] The Plaintiffs point to a number of other decisions where unauthorized communication of copyright content by means of the Internet was found to constitute irreparable harm, including: Gold TV FC and GoldTV FCA ; Bell Canada v 1326030 Ontario Inc , 2016 FC 612 ; Welsey (Mtlfreetv.com) v Bell Canada , 2017 FCA 55 at paras 3-5 ; and Bell Canada v Lackman , 2017 FC 634 at para 47 . [ 144 ] For all of these reasons, the Plaintiffs argue that they have established that they will suffer financial losses that amount to irreparable harm. [ 145 ] The Third Party ISPs contend that the Plaintiffs’ evidence falls short because they have not demonstrated that any piracy that is occurring is actually causing the Plaintiffs to lose customers or other revenue.

They point out that the law sets a high bar for establishing irreparable harm, and argue that in this case the Plaintiffs have failed to meet it. [ 146 ] The Third Party Respondents do not dispute that NHL live games are widely watched in Canada, or that the Plaintiffs have invested a substantial amount of money to acquire the rights and develop the infrastructure to broadcast them. They also do not dispute that piracy is undesirable.

Several of the Third Party Respondents attest to their collaboration on other efforts to stop the distribution of unlawful content on the Internet, including through their participation in Project CleanFeed.

However, the Third Party Respondents point out that these general propositions fall well short of establishing irreparable harm to the standard required by the binding jurisprudence. [ 147 ] In regard to the claim that the piracy of live NHL games is causing a loss of revenue, the Third Party Respondents submit that none of the Plaintiffs have provided any evidence that their advertising revenue, subscription payments or other income streams have declined because of piracy.

They point out that there is no evidence that the advertising that runs on the Plaintiff’s stations is not also displayed on the illegal live streams. Therefore there is no evidence that the advertisers’ audience for their advertisements is reduced because of the piracy, and thus no basis to conclude that the Plaintiffs are losing any revenues because of the unlawful streaming. [ 148 ] In addition, the Third Party Respondents contend that the Plaintiffs have failed to link any decline in their subscriber base to the piracy of live NHL broadcasts.

The evidence filed by the Plaintiffs is either generic – relating to piracy generally, or piracy across North America – or based on opinions expressed by witnesses that were not properly qualified as experts. The Third Party Respondents point out that none of the Plaintiffs conducted any surveys or took other steps to gather more specific evidence linking the piracy to their losses. In the absence of such evidence, they submit that the Plaintiffs have failed to meet an essential element of the test for a mandatory interlocutory injunction. (

b) Necessity [ 149 ] This Cartier factor focuses on whether a mandatory interlocutory injunction is necessary to protect the Plaintiff’s rights.

As summarized in GoldTV FCA (at para 52 ): " “The relief need not be indispensable but the court may consider whether alternative and less onerous measures are available.” " [ 150 ] The Plaintiffs argue that the order is necessary because it is " “the only effective and practical remedy available to them to stop widespread infringement on the Internet of their exclusive right in Canada in the NHL Live Games they acquired at the cost of billions of dollars” " (Plaintiffs’ Factum at para 174).

They rely on the evidence establishing the nature and scope of the piracy and the fact that the vast majority of the pirates take steps to hide their identities and conduct their affairs outside of Canada.

They further submit that given the speed with which the pirates change the IP addresses associated with the unlawful streaming, it would be impractical to take steps to stop them by pursuing actions for copyright infringement. [ 151 ] The Plaintiffs note that in GoldTV FCA at para 42 , the necessity of undertaking such a burdensome process was expressly rejected: Where, in an action against an anonymous defendant, a court can be convinced that said defendant has and will maintain its anonymity and ignore an injunction against it, it would seem pointless and unfair to require that the plaintiff jump through certain hoops and wait a certain time to confirm what it already knows, and the court already accepts, before seeking an injunction against a third party. [ 152 ] In addition, the Plaintiffs point to the efforts that they and others have taken to curb piracy of live NHL broadcasts. [ 153 ] The evidence shows since 2019, the NHL has worked with a company to send approximately 46,400 takedown notices regarding copyright infringements.

For the 2020-2021 NHL season, over 26,300 takedown notices had been sent, and only approximately 11% of these led to a timely removal of the infringing content. [ 154 ] Rogers also asked FMTS to send takedown notices, and during the month of May 2021, it sent 221 notices to hosting providers, including those hosting John Doe No. 2’s unauthorized streaming servers and some of John Doe No. 1’s servers.

As of the date of the hearing, FMTS had received no response to these notices. [ 155 ] The evidence shows the Plaintiffs also work with a third party to monitor classified advertising services and social media platforms to identify individuals or entities advertising unauthorized subscription services, and thousands of takedown requests have been issued in regard to such advertisements and posts. They also monitor websites that sell unauthorized services through major payment processing service such as PayPal, Visa and MasterCard.

Finally, Rogers has identified and reported unauthorized streams of live NHL games available on social media sites such as YouTube, Facebook and Twitter, as well as links to such streams posted on aggregating sites such as Reddit.

Hundreds of unauthorized streams have been reported to these websites, with limited impact. [ 156 ] The Plaintiffs submit that while it is difficult to quantify the effectiveness of these measures, the evidence before the Court shows that despite all of the enforcement efforts, unauthorized streaming servers providing access to high quality streams of live NHL games remains widespread and easily available to Canadian viewers. In addition, the Plaintiffs argue that

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