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Music industry welcomes landmark ruling in Google delisting case

By | Published on Thursday 29 June 2017


The music industry has welcomed a landmark ruling in the Canadian Supreme Court in which Google has been ordered to delist an entire website globally on the grounds of intellectual property infringement.

Although not a music case, the judgement arguably sets an important precedent related to one of the music industry’s top piracy gripes: the fact that Google routinely links through to copyright infringing content and won’t delist entire websites from its search database on copyright grounds.

The case began as a dispute between two technology companies, Equustek Solutions and Datalink Technologies Gateways. The latter was accused of repackaging one of the former’s products as its own, and then of nicking confidential files from Equustek and using the information contained within to produce and sell a competing product.

Equustek went legal in British Columbia and secured an injunction in 2011 which ordered Datalink to return all the confidential files it had acquired, to stop selling Equustek products, and to direct anyone seeking Equustek products to that company’s own website.

Datalink failed to comply with all the obligations in the injunction, and instead moved its operations out of British Columbia to a location unknown and stopped returning the court’s phone calls. Needless to say, it continued to sell the IP infringing products. In 2012, Datalink and its director Morgan Jack were held to be in contempt of court and an arrest warrant was issued against the latter. Though the authorities are yet to find him.

With Datalink no longer even attempting to defend itself, but continuing to sell products that infringed Equustek’s IP, the latter company turned to Google and asked that the web giant delist it’s dodgy rival’s website from its search engine. Google advised Equustek to get an injunction ordering its nemesis to stop trading online, and said it would then delist specific web pages where Datalink continued to trade from its Canadian search engine.

That injunction was secured and Google did start removing individual web pages where Datalink was in breach of the court order. However, somewhat unsurprisingly, Datalink just started monitoring what pages had been delisted by Google, and would then set up new pages selling its IP-infringing products elsewhere within its website.

Mightily pissed off by this point, Equustek went back to court seeking a new injunction ordering Google to entirely delist any website run by Datalink on a global basis.

Google opposed that application, arguing that it was not a party in the core dispute between Equustek and Datalink; that the site-wide delisting would be ineffective; and that a global delisting was unnecessary. And then it threw in some free speech concerns for good measure.

The matter ultimately reached Canada’s Supreme Court, which yesterday ruled in Equustek’s favour, ordering Google to fully delist Datalink’s websites on a worldwide basis.

The top court noted just how important Google was in helping consumers find Datalink; the fact that delisting individual webpages just resulted in an endless game of whack-a-mole whereby Equustek was having to constantly request further pages be removed; and that the order had to be global because, while Canadian web-users are taken to by default, it’s easy for them to access other Google sites around the world.

Judges then added that if the injunction required Google to breach specific laws in other jurisdictions, including free speech laws, then it should tell the courts in British Columbia which could amend the injunction. To date Google hasn’t identified any such foreign laws the injunction forces it to breach.

The fact this case orders site-wide delisting from Google search on a global basis – and knocks back the web giant’s various arguments against such a thing – is key for the music industry.

Record companies and music publishers have long complained that, while Google will remove specific web pages containing copyright infringing material – in line with its obligations under safe harbour rules – that is of nominal benefit, because piracy sites are constantly posting new pages and links. Therefore rights owners are obliged to constantly submit a flood of takedown notices.

The music industry has been calling for a ‘takedown and stay down’ system for years, so that once one bit of infringing content has been delisted from Google search, any other page or link carrying the same content would be automatically blocked. Which, of course, is what Google has tried to do on its YouTube site via Content ID.

Meanwhile, music rights owners would like Google to entirely delist infamous piracy hubs like The Pirate Bay, which ignore court orders and like to jurisdiction hop, so that any and every page on those websites would be removed from the Google’s search databases.

Labels and publishers reckon there is a particularly good argument for such site-wide delisting where a piracy site has been subject to a web-blocking injunction, and therefore deemed to be an infringer by a court of law. Such as The Pirate Bay in the UK.

To that end, the music industry backed Equustek in its case against Google, and widely welcomed yesterday’s Supreme Court judgement.

Local record industry trade group Music Canada said in a statement: “This case establishes principles that will guide the responsibilities of internet intermediaries to reduce or eliminate harms amplified by their activities. It rejected Google’s approach of only delisting individual pages within sites, which a lower court described as promoting a ‘whack-a-mole’ approach to online infringement”.

On the global reach of the injunction, the trade group went on: “Today’s decision also ensured that the order applies worldwide and across all of Google’s search engines, 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”.

And finally, on Google’s common playing of the free speech card, Music Canada said: “The Supreme Court concluded that freedom of expression concerns raised by Google and its supportive interveners were at best theoretical. The speech contained on the sites did not engage any freedom of expression values, but rather violated multiple court orders. The Supreme Court found that ‘most countries will likely recognise … the selling of pirated products as a legal wrong’ and that freedom of expression does not require Google to engage in ‘the facilitation of the unlawful sale of goods'”.

Music Canada CEO Graham Henderson added: “Today’s decision confirms that online service providers cannot turn a blind eye to illegal activity that they facilitate; on the contrary, they have an affirmative duty to take steps to prevent the internet from becoming a black market. This is welcome news for creators of all stripes who rely on the internet as their primary market and for whom illegal online activity can instantly wipe out careers and destroy investment in new releases. Today’s decision provides a vital remedy to address illegal online activities and enforce the rights of creators”.

Bosses at the global music industry trade groups also lined up to welcome the ruling, and for all you fans of quotes, here are all those responses…

Frances Moore of the International Federation Of The Phonographic Industry: “Canada’s highest court has handed down a decision that is very good news for rights holders both in Canada and around the world. Whilst this was not a music piracy case, search engines play a prominent role in directing users to illegal content online including illegal music sites. If the digital economy is to grow to its full potential, online intermediaries, including search engines, must play their part by ensuring that their services are not used to facilitate the infringement of intellectual property rights”.

Alison Wenham of the Worldwide Independent Network: “This decision represents an important step towards a fair internet for consumers and rights owners. Common sense has finally prevailed”.

Coco Carmona of the International Confederation Of Music Publishers: “Creators and rights holders are completely dependent on the effective enforcement of intellectual property rights. Search engines, as gatekeepers of the internet, should play a key role in ensuring that intellectual property right infringements do not occur and this decision from the Canadian Supreme Court recognises this role. ICMP therefore welcomes this ruling and hopes it will help curb online infringement and ultimately help to protect the livelihoods of composers, songwriters, artists and their business partners, in Canada and across the world”.

Gadi Oron of global song-rights collecting society organisation CISAC: “This is an important decision for the creative industries, copyright holders and the digital economy. It serves as a strong reminder that the success of creators in the digital world depends on the responsibility of online intermediaries to deter unlicensed use of creative works. Search engines are the gateway to the online market and as such, should help prevent access to infringing content”.