Are Google Piracy Links Protected by the First Amendment? – Digital Music News

Posted: July 28, 2017 at 6:54 pm

Last month, Digital Music News reported on a controversial court ruling against Google. The Canadian Supreme Court ordered the search giant to remove specific piracy links not just in Canada, but worldwide. Now, Google has fought back, this time in a California courtroom.

In 2014, a Canadian court ruled that Google would have to remove a Canadian firm from its search results. Through Equusteks ex-employees, Datalink Technologies illegally sold their competitors products. Employees would set-up sites indexed on Google to sell the goods, sharing a strong percentage with Datalink.

After losing the initial court battle in British Columbia, Google filed, and subsequently lost, multiple appeals. Last month, the Canadian Supreme Court ruled against the search giant. It determined that Google was a determinative player in harming Equusteek.

The high court ruled that the search giant would have to de-index links from its search engine worldwide.

Now, Google has fought back. The search giant filed an injunction on Monday with the US District Court for Northern California. Digital Music News has obtained the documents.

Google filed the injunction to prevent enforcement of the Canadian ruling in the United States. It believes that the Canadian Supreme Court has compelled the search engine to wrongfully censor its information.

The Canadian trial court recognized that Google is an innocent bystander to the case. Nevertheless, it issued a novel worldwide order against Google, restricting what information an American company can provide to people inside of the United States and around the world.

Lawyers for the company claim that the court singled out Google, while leaving other search engines alone. They claim that people can still find links to the infringing sites through Yahoo and Bing.

In the complaint, lawyers for the company claim that Google is not the internet. It doesnt have the power to take down sites, as the ruling would suggest. Yet, the Canadian Supreme Court only found the search engine liable, leaving alone other websites.

Google is not the internet. The vast majority of internet websites are hosted by and operated through service providers other than Google. The entities with the technical ability to remove websites or content from the internet altogether are the websites owners, operators, registrars, and hostsnot Google.

Lawyers for the company laid out three causes of action.

In the first, the First Amendment protects search engine results. The complaint reads,

Enforcing the Canadian ruling in the United States would violate the companys First Amendment rights. The Canadian ruling, claims Google, furthers no compelling interest (nor a substantial interest). The existence of Datalinks search engine results remain a matter of public record.

Equustek has filed a claim only against the search engine; it has yet to file claims against Bing and Yahoo. It also hasnt gone after third-party websites that prominently display the infringing links, including social media and press websites. Equustek also hasnt filed a claim to stop the sale of Datalink products on Amazon.

For the second cause of action, Google cites the Communications Decency Act. This act provides clear legal immunity to providers of computer services for content on their services created by others. The Communications Decency Act reads,

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Equusteks initial filing is grounded in Canadian trade secret law, not US federal intellectual property or trade secret laws. Therefore, it cant enforce the order against Google in the United States. Once again, enforcement of the ruling will cause the search giant irreparable injury absent injunctive relief.

For the third cause of action, the search giant claims that enforcement of the ruling trespasses on comity. Siding with Google, the Canadian Attorney General said that the order constitutes an impermissible exercise of extraterritorial enforcement jurisdiction. The Canadian Supreme Court disregarded this statement, however. Instead, it declared that the Internet has no bordersits natural habitat is global. By saying this, the high court justified its global injunction against the company.

Equusteks counsel argued on the same principle.

Google calls the Canadian order repugnant to US public policy surrounding the First Amendment. The First Amendment gives the search giant immunity against imposing liability. Once again calling the order repugnant, the company claims that the high court singled it out. It issued an order against an innocent non-party for the sake of convenience.

Continuing on, lawyers claim,

Canadian courts failed to extend proper comity to the United States. Thus, the United States does not need to defer the order.

Google requests that the US District Court rule the Canadian order unenforceable in the United States. It also wants the court to issue a ruling in Googles favor and against the defendants, Equustek. Finally, lawyers want the court to grant the company preliminary and permanent injunctive relief from further enforcement.

You can read the injunction below.

Image by Ed Uthman (CC by 2.0)

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Are Google Piracy Links Protected by the First Amendment? - Digital Music News

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