Supreme Court of Canada Orders Google to Block Pirate Website Worldwide

Stephen Carlisle June 29, 2017

“We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.” ¹

With those incisive words, the Supreme Court of Canada finally called Google out for its long time practice of turning a blind eye to infringement of intellectual property, and ordered that Google block a pirate site, not just in Canada, but around the world.

The case is landmark decision in the protection of intellectual property, and one that is going to instruct creators and artists on how to best protect their creations.

The case in question is Google v. Equustek Solutions Inc. This blog has written about this case previously. ²

“In [this] action, the Plaintiff found that the Defendant, a former distributor of Plaintiff’s, was making counterfeit copies of its industrial network interface hardware. During the course of the litigation, the Defendants stopped responding to the Court’s Orders, closed up their Canadian location, and continued to sell the counterfeit goods through a variety of internet portals in a twist on the old “whack-a-mole” strategy in which faithful readers of this blog will be familiar.  The Plaintiffs applied for, and were granted, an order against Google requiring it to remove the Defendant’s websites from their search results on a worldwide basis.” ³

Also, as noted before on this blog, Google routinely blocks websites for all sorts of reasons. ⁴ In fact, they blacklisted all of a Florida company’s websites from Google search results, a total of 231 websites in all. ⁵ So, it’s not the case that Google can’t do what the Court has ordered, it’s just that it doesn’t want to.

“The order does not require that Google take any steps around the world, it requires it to take steps only where its search engine is controlled. This is something Google has acknowledged it can do — and does — with relative ease. There is therefore no harm to Google which can be placed on its “inconvenience” scale arising from the global reach of the order.” ⁶

And, let’s not forget that Google is not some unaware third party dragged in off the street. As the previous decision by the Court of Appeals noted:

“In addition to its search services, Google sells advertising to British Columbia clients. Indeed, Google entered into an advertising contract with the defendants and advertised their products up to the hearing of this application. Google acknowledges it should not advertise for the defendants and filed an affidavit explaining its inadvertent failure to suspend the defendants’ Google account prior to the hearing.” ⁷ (emphasis added)

This is the most pungent example of why Google doesn’t block rogue websites: they make too much money selling them advertising and keywords.

The problem is that Google’s business is global. And the internet is global. An injunction that ran only to Canada would be a toothless tiger.

“The problem in this case is occurring online and globally. The Internet has no borders — its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates — globally. As [the lower court] found, the majority of Datalink’s sales take place outside Canada. If the injunction were restricted to Canada alone or to google.ca, as Google suggests it should have been, the remedy would be deprived of its intended ability to prevent irreparable harm. Purchasers outside Canada could easily continue purchasing from Datalink’s websites, and Canadian purchasers could easily find Datalink’s websites even if those websites were de-indexed on google.ca. Google would still be facilitating Datalink’s breach of the court’s order which had prohibited it from carrying on business on the Internet. There is no equity in ordering an interlocutory injunction which has no realistic prospect of preventing irreparable harm.” ⁸ (emphasis added)

Then there’s this silly argument by Google: That somehow by obeying the order it might, in some way, theoretically, be violating the law of some foreign territory. ⁹ Really? Yes, some countries have lax enforcement of their intellectual property laws. But name me one country where the protection of intellectual property is actually prohibited by law. The Supreme Court wasn’t buying this either:

“If Google has evidence that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is always free to apply to the British Columbia courts to vary the interlocutory order accordingly. To date, Google has made no such application.”

The Supreme Court then lays out what is plain to everyone that has ever been ripped off on the internet:

“Datalink and its representatives have ignored all previous court orders made against them, have left British Columbia, and continue to operate their business from unknown locations outside Canada…Datalink is only able to survive — at the expense of Equustek’s survival — on Google’s search engine which directs potential customers to its websites. In other words, Google is how Datalink has been able to continue harming Equustek in defiance of several court orders…This does not make Google liable for this harm. It does, however, make Google the determinative player in allowing the harm to occur.” ¹⁰

The Electronic Frontier Foundation, which had filed “friend of the Court” briefs (shouldn’t that be a “friend of Google” brief?) predictably howled with outrage and predicted the demise of the internet as we know it.

“Top Canadian Court Permits Worldwide Internet Censorship” ¹¹  screams the headline. Besides falsely claiming that Google was an “innocent third party” (remember they sold the defendants advertising in violation of the lower court order) the EFF claims that “[b]eyond the flaws of the ruling itself, the court’s decision will likely embolden other countries to try to enforce their own speech-restricting laws on the Internet, to the detriment of all users.”

First of all, nothing prevents a country, any country, from doing what it wants, and applying its own laws, in any way they see fit. Even if we don’t like it. If Google doesn’t like the laws of a certain country, say China or Iran (the boogey men trotted out by the EFF), then Google can stop doing business in those countries.

Seriously, China is going to base what it does regarding free speech due to a decision by a Court in Canada?

Plus, this is just another indication of the EFF’s inability to distinguish free speech and intellectual property infringement. They are not the same thing. Going back to the quote that led off this post:

“This is not an order to remove speech that, on its face, engages freedom of expression values, it is an order to de-index websites that are in violation of several court orders. We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.” ¹²