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Google fights landmark Canadian anti-piracy ruling in US court

By Chris Cooke | Published on Friday 3 November 2017

Earlier this year the Canadian Supreme Court ordered Google to delist a tech company’s entire website worldwide as the conclusion to an intellectual property infringement dispute that began in British Columbia. Although not a music case, the music industry widely welcomed the decision, as it set a precedent that Google could be forced to delist copyright infringing websites entirely and a global basis.

Google, which had already delisted the offending site on its Canadian search engine, insisted that the court’s worldwide injunction set a very dangerous precedent indeed, arguing that the Canadian Supreme Court’s order might interfere with free speech rights in other countries. The judges hearing the case rejected those arguments, saying Google’s concerns were at best “theoretical”. So this week Google rocked up to an American court with the US constitution’s First Amendment in hand to test the theory.

The British Columbia case was a dispute between two tech companies called Equustek Solutions and Datalink Technologies Gateways. The latter was accused of infringing the IP rights of the former. When the British Columbia courts started to side with Equustek, Datalink moved its operations out of the province to a location unknown. Which is why Equustek started to demand Google should stop listing its IP infringing rival, given the Canadian authorities were no longer in a position to take direct action against Datalink.

But, Equustek argued, the nature of the internet meant that Google delisting Datalink would only resolve the problems with its IP pilfering competitor if that happened on a global basis. Given that Google would only go through with any delisting at all if ordered to do so by a court, Equustek needed judicial support for such global action. And it got it.

It was that part of the ruling that record industry trade body Music Canada most liked. When the Supreme Court backed the forced global delisting of Datalink back in June, it said the ruling was “a crucial development given that the internet has largely dissolved boundaries between countries and allowed virtual wrongdoers to move from jurisdiction to jurisdiction in search of the weakest enforcement setting”.

However, having lost the battle in Canada, Google is still fighting the ruling in the Equustek case, this time in the US. Yesterday the web giant’s legal reps argued in a Californian court that the ruling conflicted with the freedom of expression rights contained within the First Amendment, and that the Canadian Supreme Court had no right meddling with the American constitution. And – with neither Equustek nor the Canadian courts present yesterday – Google’s arguments seemed to get a positive hearing.

According to Courthouse News, Google’s lawyer Margaret Caruso argued: “This is about whether a trial court in a foreign country can implement a law that is violative of the core values of this country … imagine if we got an order from North Korea that said we could not publish anything critical of Dear Leader. Imagine if Russia doesn’t like what people are saying about Putin. It would be very dangerous to deny relief in this instance”.

Noting that the Canadian judges had dubbed Google’s free speech concerns as “theoretical”, reckoning that courts in other jurisdiction would ultimately side with Equustek in its dispute with Datalink, Caruso stated yesterday: “Google now turns to this court, asking it to declare that the rights established by the First Amendment and the Communications Decency Act are not merely theoretical”.

The federal judge hearing Caruso’s arguments should rule on the matter imminently.