Hugh L. Stephens
Distinguished Fellow Asia Pacific Foundation of Canada Vice Chair Canadian Committee on Pacific Economic Cooperation (PECC)
Following the dismissal in May of the appeal against Canada’s first site blocking order (the GoldTV case) by the Federal Court, much to the chagrin of the one lone ISP (TekSavvy) that opposed the court’s order, Bell Media, Rogers Communications and other broadcasters have applied for a dynamic site blocking order to protect their broadcast rights for National Hockey League (NHL) games in Canada. What could be more Canadian than the pirating of hockey broadcasts, eh? It’s like Spaniards pirating broadcasts of bull fights. In neither case is it justified but it reflects how “pirate priorities” reflect the national psyche.
The “dynamic injunction” requested is not targeted at a specific site or streaming service. Instead, its goal is to block the unauthorized broadcast of NHL games, no matter the source. This is similar to injunctions issued in the UK to block infringing streaming of English Premier League (soccer) games. Because of the dynamic nature of piracy where the pirates duck and weave to avoid detection by shifting IP addresses regularly, sometimes even during a game, the response also has to be dynamic. The injunctions, if granted, will require Canadian ISPs to block a list of IP addresses being updated in real time.
The story of the fight for the broadcast rights for ice hockey in Canada goes back a few years. Back in 2014 Rogers shook up the world of sports broadcasting by offering $5.2 billion to win TV broadcast rights for NHL hockey in Canada for a twelve year period, 2014-2026, taking the franchise away from the government broadcaster CBC which had held the television rights for 55 years, and the radio rights for many years before that. “Hockey Night in Canada” (Saturday night) is the country’s most popular TV broadcast with at times up to 18 million viewers, half the national population.
To say that Canadians like hockey is like saying that bears like honey (or Russians like vodka). Hockey is engrained in the national psyche and has become a defining national characteristic, like poutine and the Tim Horton’s “double double”; aka double cream; double sugar. (These two delicacies make me wonder how Canada has been able to achieve life expectancy rates of 80 years for men and 84 for women). The comparable rates in the US are 76 and 81 years.
In Canada, it is irrelevant whether you are a hockey fan or not as you will still need to respond to the inevitable question, “Whadjya think of the game last night?” The correct response is not “what game?” but “yeah, close eh?” (hoping it was, in fact, close) or maybe “yeah, that was quite a fight” (knowing there is always a fight). You have to participate in the national conversation whether or not you know or care who was playing whom. Although most Canadians live in large cities, the national myth still exists of kids skating on outdoor rinks in minus 30 degree (Celsius) weather in northern Saskatchewan or Quebec. Author Roch Carrier’s famous story of “The Hockey Sweater” about a young boy in Quebec whose hero is Maurice “Rocket” Richard of the Montreal Canadiens, and who is shunned by his playmates because his mother inadvertently orders the wrong hockey jersey from the Eaton’s catalogue (yes, he was sent a detested blue jersey from the Toronto Maple Leafs), captures the depth of feeling about hockey in Canada. Mind you, that was all back in the day when there were just six teams, of which two were in Canada. Now the NHL has 31 teams, soon to be 32, with seven teams in Canada. It used to be so simple when it was just the Maple Leafs (English Canada) versus the Canadiens (French Canada), and teams from Florida didn’t win the Stanley Cup.
All this hockey action (each NHL team normally plays 82 games) generates a lot of viewing time, all of which is expensive for broadcasters (and advertisers). Since acquiring the NHL rights for Canada (at twice what NBC paid for the US rights), Rogers has licensed broadcasting and streaming rights to other broadcasters, including Groupe TVA in Quebec, Bell Media and even the CBC, in order to recoup some of its investment. It also broadcasts the games on its own Sportsnet cable channel. Given the role that it plays in Canada’s image of itself, ice hockey is the “killer app” for broadcasters, the content that you have to have in order to sell advertising. The fact that so much money has been laid out for the rights (and for licensing fees for those getting the content from Rogers) helps explain the determination of the rights-holders to plug the holes in the system caused by piracy. The request for the blocking order cites losses of between 583,000 and 974,000 subscribers, according to Torrent Freak.
Those opposed to any form of site blocking such as Teksavvy, the self-appointed defender of “internet freedoms” among the ISPs, along with groups such as the Canadian Internet Policy & Public Interest Clinic (CIPPIC) at the University of Ottawa, who seem unable to differentiate court-ordered, targeted site blocking of pirate sites from “internet censorship”, will continue to push back. Teksavvy opposed Canada’s initial site blocking order granted by the Federal Court (GoldTV), then appealed the court’s decision after the order was granted and is now criticizing that decision as opening the “floodgates” to site blocking injunctions.
I guess you could say that from one perspective, they are correct. From one blocking order we now have two, a 100 percent increase. If further orders are granted that impressive percentage increase will drop. In fact, if the blocking orders succeed in curbing piracy there may be less need to seek them. And if there are a few more, it will be because they are needed to protect the rights of those who invest in content and who, by extension, bring that content to consumers. It may be that eventually the issue of site blocking in Canada will become one more routine measure against piracy, as it is in Australia, where it has proven to be very effective in interrupting access to pirate feeds and thus encouraging viewers to get their content legitimately.
Whatever happens, hockey is not likely to lose its place as the king of content in Canada. The quality of the game is dependent on an entire eco-system, from training and recruitment of junior players through the progressive steps to becoming an NHL player, to maintaining the operation of the league itself. That eco-system has to be funded. And where do the funds come from? Consumers of course, in the form of ticket prices (already exorbitant) and broadcasters, funded by advertisers. The pirating of content undermines this eco-system on which hockey fans depend, so in the end, avoiding payment for access to the game is self-defeating. As I have commented elsewhere, sports fans are only cheating themselves when they stream pirated content. In some countries, a share of broadcast revenues go directly to sports clubs that develop young talent, so starving the development process is like eating your own seed grain.
Today, more than 40 countries have some form of piracy site blocking and the more this measure is used, the less controversial it will become. The EU is also looking at measures to speed up the take down process for sports events. Canadian courts have recognized site blocking as a proportional measure to protect copyrighted content—even when that content involves putting the puck into the net.