On June 1, 2016, the Federal Court in Bell Canada et al v 1326030 Ontario Inc dba ITVBox.net et al, 2016 FC 612 issued an interlocutory injunction against retailers of set-top boxes that are “pre-loaded” with various applications that allow users unauthorized access to copyrighted television content. In view of the increasing presence of these set-top boxes in the Canadian market, the Court’s Order also authorizes the Plaintiffs to seek to extend the scope of the interlocutory injunction by adding new co-Defendants.
Concerned about a loss of television subscribers due to pirated content, the Plaintiffs—well-known Canadian broadcasters and broadcast distribution undertakings—teamed up earlier this year to take legal action against five named Defendants: iTVBox.net, My Electronics, Android Bros Inc., WatchNSaveNow Inc., and MtlFreeTV.com. Raising causes of action grounded in both direct and indirect copyright infringement under the Copyright Act, as well as in provisions of the Radiocommunication Act, the Plaintiffs asked the Court to grant an interlocutory injunction restraining the Defendants from distributing pre-loaded set-top boxes. Madam Justice Tremblay-Lamer of the Federal Court was therefore left to decide whether an interlocutory injunction should issue in light of the three-part test established by the Supreme Court of Canada in RJR-MacDonald Inc v Canada (Attorney General),  1 SCR 311.
Noting that the Defendants deliberately encourage consumers to access illegal content and to, consequently, infringe the Plaintiffs copyrights, Tremblay-Lamer J held that the Plaintiffs presented a strong prima facie case for all causes of actions raised. Justice Tremblay-Lamer also found that the Plaintiffs would suffer irreparable harm if the injunction were not granted, notably on the basis that pre-loaded set-top box users have an incentive to permanently cancel their subscriptions with the Plaintiffs. With respect to the final prong of the test, Justice Tremblay-Lamer found that the Plaintiffs’ strong prima facie case tipped the balance of convenience in their favour, because the injunction does not restrain the Defendants from selling set-top boxes on which “non-copyright-infringing applications” are installed.