
Music industry welcomes landmark ruling in Google delisting case - 6stringmerc
http://www.completemusicupdate.com/article/music-industry-welcomes-landmark-ruling-in-google-delisting-case/
======
slantyyz
Since we're talking about a case in Canada, it's also worth noting that the
RIAA is also trying to exclude "fair use" from the renegotiation of NAFTA.

[http://www.michaelgeist.ca/2017/06/naftacopyrightcomments/](http://www.michaelgeist.ca/2017/06/naftacopyrightcomments/)

~~~
MrZeus
Also, the EFF has an article warning that this court decision might set a
dangerous precedent for Internet Censorship in the future:

[https://www.eff.org/deeplinks/2017/06/top-canadian-court-
per...](https://www.eff.org/deeplinks/2017/06/top-canadian-court-permits-
worldwide-internet-censorship)

------
pbhjpbhj
How is Google beholden to the Canadian court to perform actions outside it's
jurisdiction? Surely the response from Google should be something like
"Google.ca can comply in removing links from all web pages and databases it
legally controls in the jurisdiction of the court but as this court has no
jurisdiction over foreign partner corporations _will not_ comply with _ultra
vires_ demands against third-party legal entities in other countries"?

I guess Google can choose to comply, what benefit is there for Google in that?

Aside OP lacks detail: it sounds naively like a company was butt-hurt because
someone did marketing better than them and sold more re-branded product?
Anyone got analysis of the actual harm committed?

~~~
dragonwriter
> How is Google beholden to the Canadian court to perform actions outside it's
> jurisdiction?

Jurisdiction doesn't work the way you think it does, so the premise of your
questions is false, but Google is “beholden to” the court because the court
has the legal and practical power to impose further sanctions which do not
rely on Google's cooperation if it's orders are not obeyed.

~~~
pbhjpbhj
Sanctions under what law? I'm interested in the construction of the law here.

Does Canadian law prevent Nestle from operating because they employ child (and
slave) labour in West Africa for example. If not then why does Canada care
more about a foreign SERP listing for re-branded products than for exploited
children in the chocolate industry, why push their jurisdictional area of
action to the globe in one case but not the other?

~~~
dragonwriter
> Sanctions under what law?

Canadian law regarding contempt of court.

~~~
pbhjpbhj
[IANAL corrections encouraged]

The court can't usually just make up international sanctions, it would be
enshrined in the law passed by parliament. Fines, prison, material seizure,
cease & desist, and other remediations are usually given in schedules.

Usually courts can't order action by third-parties in other countries - if
that is available to then it would be bizarre in the extreme that it wasn't in
s law passed by Canadian Parliament.

So I was hoping for details of that particular legislation; or an explanation
of how Canadian law doesn't have a notion of _ultra vires_ and allows it's
courts to demand international actions from third-parties, in order to punish
display of a SERP.

Perhaps there some legislation at
[http://laws.justice.gc.ca/eng/](http://laws.justice.gc.ca/eng/) that will
shed light on this?

~~~
dragonwriter
The decision itself explains it's reasoning and cites (though less directly
then I am used to in US appellate decisions) the relevant precedent.

[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16701/inde...](https://scc-
csc.lexum.com/scc-csc/scc-csc/en/item/16701/index.do)

~~~
pbhjpbhj
Thanks, Fenlon J sets out the specious reasoning inadvertently in his analogy
quoted in para 30:

>". . . a non-party corporation that warehouses and ships goods for a
defendant manufacturing company might be ordered on an interim injunction to
freeze the defendants’ goods and refrain from shipping them."

The Canadian courts wouldn't make an order to a Lithuanian warehouse to hold
goods being sold by a company in Moldova who happened to have the same name as
a company previously the subject of a lawsuit in Canada, would they?! As part
of an interlocutory injunction the stated aim of which is to close down that
foreign business (it's said [albeit potentially erroneously] that without a
Google listing the foreign seller won't be able to continue business) prior to
a court judgement on the full facts of the case?

It's good to see that 2 of the judges agreed this was beyond the pale.

At para 53 Abella drops this clanger:

>"It does, however, make Google the determinative player in allowing the harm
to occur."

The original harm was twofold. Reselling re-badged products and an allegation
of reverse engineering, the selling of the new product "unfairly" leeching
from Equustek's sales.

The first part is dealt with by the litigant not selling the product to
Datalink to resell. The second part is accomplished by Datalink (incorporated
in Canada) no longer existing.

>"Equustek’s claims were supported by a good prima facie case, but it was not
established that Datalink designed and sold counterfeit versions of its
product, or that this resulted in trademark infringement and unlawful
appropriation of trade secrets."

Equustek could proceed and have Datalink closed down by the courts; but
apparently haven't bothered to do this for 5 years.

It strikes me the media companies have jumped on this in order to get a
judgement allowing them to get interlocutory injunctions (with permanent
effects) that force Google to, in effect, close down businesses/websites (by
de-indexing) rather than having to get an actual court judgement on the full
facts of a case. [See para 66] Datalink have yet to be shown to be guilty, the
intended receiver of the Google Order is to shut then down completely - that
seems like a loss for the rule of law.

------
Keverw
This is a very dangerous precedent. Will Google have to remove LGBT
organizations and information from Google worldwide because Russia asks them?
Will all links mentioning woman driving have to be removed worldwide because
some middle eastern country tells them to?

I feel like nations should be only allowed to have providers block content
based on GEO location from the visitors IP address. They have no right
limiting speech in America.

Copyright protection is something I agree with like I think if Google gets a
DMCA it's removed worldwide anyways since they host in the US too... So that's
been the norm anyways. But just scary other nations might try to use this to
further restrict non-copyright related things.

But then again not all nations view intellectual property the same. Doesn't
some nations not recognize software patents? Like I heard they are harder to
do in Europe than in the US before. Maybe you could get a US judge to order
your European competitors website removed even if completely legal is their
own country. Then same for trademarks, you may get a trademark in the US but
someone might have a trademark in China. For example, iPad Apple trademarked
in the US, but in China, they had to pay $60 million to settle a trademark
dispute.

~~~
kalmar
> Will all links mentioning woman driving have to be removed worldwide because
> some middle eastern country tells them to?

Among "some middle eastern countries" that exist, only Saudi Arabia has that
law, and they do not censor images of women driving.

------
6stringmerc
I wonder if this will have a material effect on the value of Google. An ad
firm / search engine forced to comply with these kinds of rulings is a new
development in my opinion.

Reading the details of the case makes me insist "If you're a tech person
(indie developer?), put yourself in the shoes of the person being ripped off,
and tell me how you'd justify letting the scam continue" because it's pretty
clear-cut to me. At least in _this case_ and it remains to be seen if there
will be other _reasonable cases_ in the future.

~~~
donatj
The company was merely rebranding products they had purchased. Reselling
rebranded equipment has a long legal history. No one was being ripped off as
you put it, they were being paid for their goods.

We just had a Supreme Court win for the right of resale in the United States
over rebranded refilled printer cartridges. Should Lexmark now be able to go
to court in Canada and get the refillers delisted in the United States? It's
literally the exact same issue.

~~~
cmiles74
My understanding is the company _started out_ by re-branding equipment but
then stole some proprietary data so that they could create their own competing
product.

"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."

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jrochkind1
Ugh. What does the court order actually read, anyone found it?

Is Google supposed to be able to somehow identify any web page operated by the
named company, and de-list it? Any web page mentioning the infringing product?
What?

~~~
qb45
More details here:

[https://news.ycombinator.com/item?id=14657061](https://news.ycombinator.com/item?id=14657061)

The article has a link to court documents.

------
mitchellshow
Something to note when discussing music copyrights.

The industry is much less focused on what it can gain through litigation, and
much more focused on what it loses by not aggressively protecting their
copyrights.

I recall a conversation with a friend who managed PR for the RIAA when they
went around suing teenagers for using P2P (yeah, imagine that PR job). They
knew the mess it would cause, but they had to do it, because it sent a
stronger message if they did nothing. IANAL, but there's something about if
you knowingly let someone use your copyright without demanding they license it
from you, you give up or lose the copyright at some point? (Edit: apparently
this only applies to trademarks, not copyrights)

Labels have invested a heap of cash buying these rights, we shouldn't all be
shocked when they act lawfully to protect them.

~~~
bluGill
> there's something about if you knowingly let someone use your copyright
> without demanding they license it from you, you give up or lose the
> copyright at some point?

You are thinking of Trademarks. In copyrights there is no such thing, and
international treaties make it unlikely there will be.

In Trademarks you have to use and defend it or it is gone. Thus companies make
efforts to be seen defending their trademark: if they can show the court that
they have been careful about defending their trademarks they have a stronger
case when someone is genuinely infringing.

The RIAA does not lose any rights by not protecting their copyright. However
they also know sending a message to kids when they are only involved in small
illegal act can prevent them from getting bigger, which is consideration they
need to think about.

~~~
mitchellshow
Yeah, I think my friend was thinking of trademarks vs copyrights. I'm not
arguing the lawsuits weren't a scare tactic... it was a spectacular failure of
a plan. But I'm not sure what else they could have done at that point, as the
sky started falling.

------
phkahler
The problem here is traceability. The court ordered them to stop but can't
enforce that order because it can't find the people behind the infringing
product. This is yet another reason for stuff on the internet to be traceable
by default. It seems odd that Google can link to a website, but even the
courts can't track down the owners of the web site.

~~~
pjc50
> stuff on the internet to be traceable by default

Traceable by whom? This is a recipe for speech suppression by harassment on a
colossal scale.

------
larodi
fuck. the. music. industry. links are always gonna pop, google or not.

~~~
thunderbong
The question is - how're you going to find them?

~~~
mythrwy
Forums?

But really by the time a new link pops up, is indexed, found, recognized by
infringed parties, then by court order delisted, 10 more will have arisen no?

As long as courts are involved and the process is slow, I can't imagine it
having any substantive effect on these kind of links which seem to come and
go.

This is different from the case in the article which is a longer term
enterprise being delisted. And in that case a regroup, rename, new domain and
maybe a new website seems it would be easy enough if the infringing party is
determined to stay up.

------
redleggedfrog
Uhh, so I'll use DuckDuckGo to find the site instead?

In other words, should this be for all the search engines?

~~~
jacquesm
Stuff that isn't in Google effectively does not exist on the web since that's
how people get around these days rather than to follow links from one page to
another.

The 0.001% (if that) that uses DDG can be safely ignored.

~~~
redleggedfrog
Heh, like that I'm in that 0.001%. I'm special.

------
millzlane
Which site did they have to delist? There are so many of them though.

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wyager
First a frivolous €2.4B "fine" from the EU, now some insane global censorship
attempts by an aggressive minority market. That's just this week!

How long until Google moves to a boat nation or something? I'd live on a boat
if I could skip out on income taxes.

~~~
sacheendra
A nation state is not just there to collect taxes but to provide some
guarantees that the company can survive and conduct business in a certain way.

If you or Google were to move to a boat, who is preventing some nation state
from bombing you. Who is preventing nations to not just raid Google servers
and ban them as they wish. Other nations currently don't do that because of
the backing of the nation Google is located in.

~~~
wyager
Google has $64B cash reserves as of 2015. More than enough to purchase a
decent military deterrent arsenal (up to the Samson Option, if they wanted)
and/or the cooperation of some small money-hungry nation.

~~~
grasshopperpurp
So, for the sake of avoiding taxes and penalties, you think Google should go
into the 3rd-world, warlord business? Talk about cutting off your nose to
spite your face.

~~~
wyager
Who said anything about the third world? The GoogleBoat(tm) would probably be
very nice, especially without the overhead associated with paying taxes and
"fines".

Even the €2.4B the EU is trying to extort from Google would be more than
enough to purchase a heavily entrenched offshore presence.

