THE BLOG

What If SOPA Came to Canada?

01/23/2012 01:52 EST | Updated 03/24/2012 05:12 EDT

The Internet battle against SOPA and PIPA generated huge interest in Canada with many Canadians turning their sites dark (including Blogging Tories, Project Gutenberg Canada, and CIPPIC) in support of the protest. In writing about the link between SOPA and Canada, I noted that the proposed legislation featured an aggressive jurisdictional approach that could target Canadian websites. Moreover, I argued that the same lobby groups promoting SOPA in the U.S. are behind the digital lock rules in Bill C-11.

While SOPA may be dead (for now) in the U.S., lobby groups are likely to intensify their efforts to export SOPA-like rules to other countries. With Bill C-11 back on the legislative agenda at the end of the month, Canada will be a prime target for SOPA style rules. In fact, a close review of the unpublished submissions to the Bill C-32 legislative committee reveals that several groups have laid the groundwork to add SOPA-like rules into Bill C-11, including blocking websites and expanding the "enabler provision" to target a wider range of websites.

Given the reaction to SOPA in the U.S., where millions contacted their elected representatives to object to rules that threatened their Internet and digital rights, the political risks inherent in embracing SOPA-like rules are significant.

The music industry is unsurprisingly leading the way, demanding a series of changes that would make Bill C-11 look much more like SOPA.

For example, the industry wants language similar to that found in SOPA on blocking access to websites, demanding new provisions that would "permit a court to make an order blocking a pirate site such as The Pirate Bay to protect the Canadian marketplace from foreign pirate sites." Section 102 of SOPA also envisioned blocking of websites:

A service provider shall take technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States to the foreign infringing site (or portion thereof) that is subject to the order, including measures designed to prevent the domain name of the foreign infringing site (or portion thereof) from resolving to that domain name's Internet Protocol address. Such actions shall be taken as expeditiously as possible, but in any case within 5 days after being served with a copy of the order, or within such time as the court may order.

The music industry also wants Internet providers to be required to adopt a termination policy for subscribers that are alleged to be repeat infringers. According to the industry document:

To incent service providers to cooperate in stemming piracy by requiring them to adopt and reasonably implement a policy to prevent the use of their services by repeat infringers and by conditioning the availability of service provider exceptions on this being done.

This demand would move Canada toward the graduated response policy that could result in loss of Internet service for Internet users. There is no indication in the music industry document of due process or even proof of infringement.

Several lobby groups also want language similar to that found in the infamous Section 103 of SOPA. That provision, which spoke of sites "primarily designed or operated for the purpose of...offering goods or services in a manner that engages in, enables, or facilitates" infringement, raised fears that it could be used to shut down mainstream sites such as YouTube.

According to the music industry document, Bill C-11's "enabler provision" should be expanded to include "services that are primarily operated to enable infringement or which induce infringement." Those demands are echoed by the Entertainment Software Association of Canada, which called on the government to "amend the enabling provision to ensure that it applies to services that are "designed or operated" primarily to enable acts of infringement." Both groups also want statutory damages added to the enabler provision so that liability can run into the millions of dollars for a target website.

Just as there are questions whether SOPA is even needed in the U.S. (the takedown of Megaupload suggests that current laws are effective), the same is true with the enabler provision in Bill C-11, given that the music industry is already suing IsoHunt, the Canadian-based torrent search site, using current law.

The expansion of the enabler provision to include sites that operate to enable or induce infringement could extend far beyond so-called "pirate sites", since many user generated content sites (such as YouTube) and cloud-based service sites can be said to enable or induce infringement, particularly in a country like Canada that does not have a fair use provision.

As for the government's plans, C-11 committee member Dean Del Mastro specifically referenced changes to the enabler provision in a recent interview about potential changes and there are rumours that the U.S. government is pushing the Canadian government to toughen the enabler provision (while keeping the digital lock rules unchanged). That suggests that just as the U.S. is moving away from SOPA in its own laws due to the political uprising against it, the Canadian government may be headed toward a similar quagmire as the U.S.-backed lobby groups lead it down a politically risky path.