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Page 4 OctOber 1, 2018 • Law times www.lawtimesnews.com Court ordered website to be shut down Lawyers watching copyright infringement case BY MEAGAN GILLMORE For Law Times T he copyright battle continues between a number of Canadian broadcasters and the website TVAddons, where users can download the Kodi media player and other streaming ap- plications. Lawyers representing the broadcasters say the case will proceed to trial, although a date has not been set. A trial could provide further clarification about how courts will respond to copyright infringement as us- ers continue to move away from viewing television in traditional formats, lawyers in Ontario say. Adam Lackman resigned as administrator of TVAddons on June 20, a post on TVAddons' website says. The court had ordered the site — where users can down- load the Kodi media player — to be shut down in June 2017, but it relaunched in August 2017 un- der new ownership. "It's really impossible to tell at this point [when the trial will be]," says Guillaume Lavoie Ste- Marie, an associate at Smart & Biggar LLP's Montreal office, who worked on the case. The case is in the discovery stage, he says, and no trial date has been set. Lavoie Ste-Marie says a search warrant was ex- ecuted at Lackman's house this summer in connection with costs he has not yet paid. The post announcing Lack- man's resignation says he re- mained on the board after the relaunch. Lackman, who founded the site, had "been un- der immense pressure" because of the lawsuits and his resig- nation came "after a period of long deliberation among senior members of [the] team and [the decision] was made in order to ensure the longevity of [the] platform," according to the post. In February, the Federal Court of Appeal ruled that a pre- vious injunction against Lack- man's website and an Anton Pill- er order executed at Lackman's Montreal residence were lawful. It said the broadcaster's appeal should be heard. The court or- dered the site remain shut down until a final decision in the case is reached. The dispute between Lack- man and Canadian media com- panies, including Bell, Rogers and Quebecor, dates back to 2017. The companies allege the Montreal-based site encour- aged users to download and use applications that allow them to stream and watch television shows, movies and live sporting events illegally, the February de- cision says. It describes how the site showed users how to access the Kodi media player, an open- source software that is free to download and, when used with other add-ons, lets users watch material available online. Lackman disagreed, accord- ing to the February decision, saying the website was only a conduit, a way for people to ac- cess content. The decision de- scribes how Lackman "insists that the multi-media content ac- cessed by the use of the add-ons is not located on the TV Addons website and needs to be accessed and streamed on the internet by using the Kodi application." As a conduit, Lackman ar- gued, the site is protected by the Copyright Act. He described the site as a forum for Kodi users. On June 9, 2017, Justice René LeBlanc issued an interim in- junction against Lackman, or- dering the site be taken down. He also authorized a search war- rant for items including Lack- man's login information for several websites associated with TVAddons, as well as social me- dia accounts associated with the website, the February decision says. Later in June 2017, Justice Richard Bell ruled the Anton Piller order was not lawful, ac- cording to the February deci- sion. Bell agreed with Lackman's description of the site as a con- duit, comparing the add-ons to mini versions of Google. He or- dered the seized material to be returned. He also revoked the previous injunction. In February, the Federal Court of Appeal said LeBlanc's original decision was correct. Bell, the court said, had made a mistake by not correctly un- derstanding how Lackman's website infringed copyright. It criticized Bell's description of the add-ons as miniature Google search engines. "The fact that a search result using an add-on can be rep- licated with Google is of little consequence," Justice Yves De Montigny wrote in the deci- sion. "The content will always be found using Google or any other Internet search engine because they search the entire universe of publically available information. Using add-ons, however, takes one to the infringing content much more directly, effortlessly and safely." Google uses algorithms to sort results by relevance, De Montigny said in his decision. Add-ons, like the one Lackman's site promoted, are designed to only take users to links that work and are free of advertisements and viruses. The February decision is "eminently right," says Barry Sookman, a partner at McCar- thy Tétrault LLP in Toronto. He says he always thought the previous decision in favour of Lackman was based on a misun- derstanding of the definition of intermediaries. The court disagreed with Lackman's claim that his web- site did not encourage illegal streaming of content and only provided users with tools to stream. The decision describes how Lackman's site included links to approximately 1,500 add-ons. While not all infringed content, the decision notes how the majority of links included in a list of featured add-ons were infringing. The decision further notes how the site ad- vertised itself as the best source for unofficial Kodi add-ons, including offering FreeTelly, a specialized version of Kodi that can be downloaded and comes pre-configured with multiple infringing add-ons. "The implications of mar- keting 'unofficial KODI add- ons' and naming an application 'FreeTelly' are clear," De Mon- tigny wrote. "I fail to understand how the respondent can cloak himself in the shroud of an innocent disseminator, when his website clearly targets those who want to circumvent the legal means of watching television programs and the related costs." Peter Ruby, a partner at Goodmans LLP in Toronto, who has represented telecommunica- tions companies in several cases, although not this one, says the decision shows the courts favour a "common-sense" approach to what it means to make content available to the public. "The courts are not dancing on the head of a pin in respect to what the [phrase] 'making avail- able' means. They're just looking at the English words and apply- ing them in a straightforward way." The February decision notes similarities between Lackman's case and a 2016 case, Bell Can- ada v. 1326030 Ontario Inc. (iTVBox.net), where the court ordered companies to stop sell- ing and distributing TV set-top boxes. The boxes come pre-loaded with applications used to ac- cess copyrighted material, such as television shows and movies. Some were installed with the Kodi media player, the same add-on found on Lackman's TVAddons site. "Neither one of these services can be credibly considered to be a mere neutral conduit," the Feb- ruary decision says. Jill Jarvis-Tonus, co-leader of Bereskin & Parr LLP's copy- right and digital media group, says these cases show businesses cannot be considered conduits when they are created to infringe copyright and clearly advertise themselves that way. "They were in the thick of it," she says. "They had no real purpose other than to provide infringing materials." LT NEWS NEWS NEWS • Forces Driving Change • Components of the Gig Economy and the new rules that apply to them • Adapting to the New Realities • Ontario Reforms: Fair Workplaces, Better Jobs Act • Alberta Reforms: Bill 17, Fair and Family-Friendly Workplaces Act • Federal Budget Changes • Down the Road COURSE HIGHLIGHTS: *Discount applies to in-class only REGISTER BEFORE OCTOBER 12 AND SAVE UP TO $300* LAW REFORM IN THE GIG ECONOMY Toronto In-Class Course • Online Live Webinar | November 14 Register online at www.lexpert.ca/legal-programs For questions and group rates, please contact: Toll-Free: 1-877-298-5868 • Direct: 416-609-5868 Fax: 416-609-5841 • Website: www.lexpert.ca/legal-programs • Email: cpd.centre@thomsonreuters.com COURSE LEADER: STUART RUDNER, RUDNER LAW Untitled-2 1 2018-09-26 8:22 AM Jill Jarvis-Tonus says recent cases in Quebec and Ontario show businesses cannot be considered conduits when they are created to infringe copyright and clearly advertise themselves that way. 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