equustek solutions – Techdirt (original) (raw)

RIAA Trashes Its Legacy As A 1st Amendment Supporter By Cheering On Global Internet Censorship

from the crapping-on-your-legacy dept

It appears that many people don’t remember this, but the RIAA used to be a major force in protecting free speech and the First Amendment. It had many good reasons to do so, after all, since free speech is very important to all of the artists that the RIAA’s labels work with. Artistic expression — especially in the musical realm — has frequently come under attack by politicians and, for decades, the RIAA was actually a really important player in standing up for the First Amendment. See, for example, this 1992 article in the LA Times from then RIAA President Jason Berman, in which he lists out all the ways that the RIAA has been fighting censorship. Yes, these are all specific in protecting musicians, but they were some really important First Amendment arguments to be made in these areas:

* In 1990, the RIAA kept lyric labeling legislation off the books in 22 states by implementing a state government relations program that became the RIAA’s second-highest-funded program, dedicated a full-time RIAA executive, consumed more than 80% of the association’s public relations efforts, mobilized grass-roots campaigns involving local retailers, artists, legislators and consumers and brought expert witnesses to testify before state legislatures. * Again in 1991, the efforts of the RIAA’s state government relations program defeated similar legislation in more than a dozen states. * This year, the program has been broadened by recruiting local legislative councils in 14 states resulting in defeated measures in New York, West Virginia, Arizona, Illinois and Missouri while the battle continues in Massachusetts, Louisiana and Michigan. * Throughout all of this activity, we’ve been a key player in opposing a federal bill creating third-party liability for sexual violence alleged to have been caused by music and other forms of entertainment. * We are a founding member and the principal funder for Rock the Vote, the music industry grass-roots organization aimed at defeating censorship and promoting participation by young people in the democratic process. * We formed the Coalition Against Lyric Legislation, an organization comprising more than 60 groups rallying to fight freedom of expression. * In addition to our amicus brief on behalf of 2 Live Crew, which raised the key issues leading to their exoneration in the 11th Circuit appeal, we contributed to the cost of the defense in the case, and have also committed legal and financial assistance to retailers in Nebraska and Florida. * Finally, we are proud to stand with the Washington Music Industry Coalition to seek a judicial declaratory ruling that the recently enacted erotic music statute is unconstitutional and should be stricken from the books.

And that’s just one article — the first I found via a quick Google search. If you were interested in these issues in the 1980s, the RIAA was very involved in protecting the First Amendment.

So it’s fairly ridiculous (if entirely expected) that the modern RIAA is destroying that historic legacy of protecting free speech by now cheering on global internet censorship. As we’ve discussed, Canada recently launched a horrific attack on free speech, by saying that it can issue injunctions blocking entire sites globally on mere accusations of infringement. Let’s repeat that: the Canadian court is saying that, even before a trial has determined if there is actual infringement, it can order sites (in this case Google) to block entire websites (not just pages involved in the infringement) — and that it can do so globally. As we pointed out, this precedent is horrifying. What will happen when China demands all stories about Tiananmen Square be blocked globally? Or what happens when Saudi Arabia or Iran demands that pages supporting democratic reforms or LGBTQ rights must be taken down globally?

And yet, rather than condemn an overly broad ruling that will lead to global censorship, the RIAA sullied its own historical legacy and cheered on this global censorship ruling, claiming that it was “a win.”

And, yes, it doesn’t take a genius to figure out why the RIAA is so wishy-washy on free speech. Those earlier issues involved protecting musicians. Now, with the internet, it wants to stomp out free speech on the off chance that some of it might infringe copyrights and make RIAA members’ business models somewhat trickier. But that’s sad. A principled organization should stand up for what’s right — and not what’s politically expedient. And, really, this ruling will almost certainly come back to bite the RIAA as well. Not only will it lead to new, helpful, innovative platforms facing global censorship, is it that hard to believe that some countries may try to censor RIAA-connected artists, using this ruling as precedent?

These days, the bosses at the RIAA have got so much “piracy-on-the brain” that they seem completely unable to (1) stick to a principled position on the First Amendment or (2) see how cheering on global censorship might come back to bite them as well.

Filed Under: censorship, copyright, first amendment, free speech, internet, legacy
Companies: equustek solutions, google, riaa

Canadian Supreme Court Says It's Fine To Censor The Global Internet; Authoritarians & Hollywood Cheer…

from the d'oh-canada dept

For the past few years, we’ve been covering the worrisome Google v. Equustek Solutions case in Canada. The case started out as a trademark case, in which Equustek claimed that another company was infringing on its trademarks online. That’s fine. The problem was that the lower court issued an injunction against Google (a non-party in the case) that said it had to block entire sites worldwide. Blocking sites already raises some concerns, but the worldwide part is the real problem. In 2015, an appeals court upheld that decision, and earlier today the Canadian Supreme Court agreed with both lower courts in a 7-2 decision.

The court is dismissive of any concerns about how an order from one country to block things on the internet globally might be abused — calling the concerns “theoretical” and unproven. That may not last very long. First, let’s look at the decision itself, and then the horrific possible consequences for free speech and innovation.

Google?s argument that a global injunction violates international comity because it is possible that the order could not have been obtained in a foreign jurisdiction, or that to comply with it would result in Google violating the laws of that jurisdiction, is theoretical. 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. In the absence of an evidentiary foundation, and given Google?s right to seek a rectifying order, it is not equitable to deny E the extraterritorial scope it needs to make the remedy effective, or even to put the onus on it to demonstrate, country by country, where such an order is legally permissible.

This is a nifty trick: because you can’t show that this order might offend freedom of expression laws somewhere else in the world, let’s just assume it’s fair to apply absolutely everywhere. But… that’s not the issue. It’s not for a Canadian court to determine if its rulings obey the laws in other countries. A Canadian court has jurisdiction over Canada. And that’s it. This is not about balancing theoretical harm v. real harm, this is about jurisdiction.

The court tries to get around the jurisdictional question by saying because Google is available in Canada, somehow that makes it okay to censor globally, and further, notes that the lack of borders on the internet require such a result (ignoring how this will almost certainly create massive problems down the road):

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 Fenlon J. 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 deindexed 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.

This sounds nice, but makes no sense. First, again, a Canadian court only has jurisdiction over Canada. If the irreperable harm is happening elsewhere, then that’s not the Canadian court’s jurisdction and it has no say in the matter. The fact that purchasers outside Canada can find Datalink’s website isn’t a matter for Canadian courts. This may sound unfair — as the court seemed to think — but take two seconds to flip the script and think about how this would work with a ruling in China about stories concerning Tiananmen Square, or in Saudi Arabia about LGBTQ rights — saying that Google had to de-index such sites in Canada, because they violated local law.

The second scary part about the ruling is that it’s not just saying that Google needs to de-index sites shown to involve infringement, but that it needs to de-index an entire site because other pages on that site might, at some future point, infringe. Really. The two dissenting judges pointed out how problematic this aspect is in the ruling, and how it actually gives Equustek even more than it was seeking.

The December 2012 Order gives Equustek more than the injunctive relief it sought in its originating claim. Rather than simply ordering the modification of Datalink websites, the December 2012 Order requires the ceasing of website business altogether.

And that creates an additional problem. Since Equustek is getting more than it wanted, and because the defendant in the original case has ignored the court process, it’s likely that this “temporary” injunction will effectively become a permanent one:

In our view, little incentive remains for Equustek to return to court to seek a lesser injunctive remedy. This is evidenced by Equustek?s choice to not seek default judgment during the roughly five years which have passed since it was given leave to do so.

Thus, the dissent notes, this is, in effect, a permanent injunction. And, it doesn’t come close to the standards necessary for such a permanent injunction — specifically in dragging a third party (i.e., Google) into the remedy:

As we will outline below, the Google Order enjoins a nonparty, yet Google has not aided or abetted Datalink?s wrongdoing? it holds no assets of Equustek?s, and has no information relevant to the underlying proceedings. The Google Order is mandatory and requires court supervision. It has not been shown to be effective, and Equustek has alternative remedies.

And, it fears that Google will be forced to continue to monitor and de-index any new website set up by Datalink:

The Google Order requires ongoing modification and supervision because Datalink is launching new websites to replace delisted ones. In fact, the Google Order has been amended at least seven times to capture Datalink?s new sites (orders dated November 27, 2014? April 22, 2015? June 4, 2015? July 3, 2015? September 15, 2015? January 12, 2016 and March 30, 2016). In our view, courts should avoid granting injunctions that require such cumbersome courtsupervised updating.

Finally, the dissent points out that it appears Datalink has assets in France, and Equustek could easily go after them there, and that would be a remedy that leaves Google out of the process.

Unfortunately, the dissent does not really delve into the problematic nature of a Canadian court claiming it can force a website to de-list sites globally. I already provided the Chinese/Saudi Arabian examples above, but Canadian law professor Michael Geist goes much deeper:

Google will obviously abide the ruling, but as I noted last year, what happens if a Chinese court orders it to remove Taiwanese sites from the index? Or if an Iranian court orders it to remove gay and lesbian sites from the index? Since local content laws differ from country to country, there is a great likelihood of conflicts. That leaves two possible problematic outcomes: local courts deciding what others can access online or companies such as Google selectively deciding which rules they wish to follow. The Supreme Court of Canada did not address the broader implications of the decision, content to limit its reasoning to the need to address the harm being sustained by a Canadian company, the limited harm or burden to Google, and the ease with which potential conflicts could be addressed by adjusting the global takedown order. In doing so, it invites more global takedowns without requiring those seeking takedowns to identify potential conflicts or assess the implications in other countries.

Geist also notes that this is part of the “drip drip drip” nature of mutliple rulings chipping away at free expression online:

This last paragraph noting that Google already removes links to certain content (hate speech, child pornography, and copyright takedowns) highlights the cumulative effect of court decisions and regulations that individually may seem reasonable but which quickly move toward takedowns of all kinds. In fact, the majority cites the international support for Internet injunctions with global effect as a justification for its own order. The net result is the expectation of all countries and courts that they may issue global takedown orders regardless of the impact on Internet users outside the jurisdiction or on Internet intermediaries.

Furthermore, Geist highlights where the court went wrong in saying that because it’s “easy” for Google to de-index a site worldwide, there’s no burden. But the technical burden is not the issue. The legal burden is:

Of course, the inconvenience does not come from the technical side of removing search results, which is indeed trivial. The real inconvenience comes from conflict of laws and the potential for global takedown orders coming from across the planet, thereby opening the door to other countries choosing what Canadians might be able to find in search results. Those issues ? along with the need to identify the laws in other countries in order to avoid conflicts ? do involve significant inconvenience and expense.

Indeed, a ruling like this likely will give Google more power over others, because Google has a large legal team that can handle this. Most other sites do not. Smaller sites cannot scour the globe to find out where such global takedown orders are legal and where they are not.

Another Canadian lawyer, Howard Knopf, is even more forward in pointing out how this will be abused by Hollywood:

I can just see the RIAA and MPAA salivating that the thought of getting global injunctions against Google at an interlocutory hearing from a trial judge in British Columbia. Will the mere fact that copyright subsists in BC – as it does virtually everywhere – be sufficient to get the injunction? One can imagine that few if any defendants would appear in such proceedings.

And, worse, he points out that even if Canadian trial judges see through that ploy, the RIAA & MPAA can just go jurisdiction shopping for other locations where courts will cite this case as a reason they can issue preliminary global injunctions. Canada just handed anyone who wants it a tool for global censorship. Anyone from authoritarian regimes to Hollywood may now begin to use it.

I recognize that some Google haters are cheering on this ruling because they will cheer on anything that makes Google look bad — and the RIAA/MPAA types are celebrating this new power over Google. But this is extremely short sighted. Enabling countries to reach across borders to censor the internet does not end well. You are giving veto power over speech to the most repressive regimes, just because you dislike a company. If that’s your view, you should perhaps check your priorities more carefully. And this goes doubly for the RIAA and MPAA. Those two organizations both used to fight for free speech. They both used to fight for the ability of musicians and filmmakers to express themselves. This tool that they helped create (they were involved in this case, pushing the view that the court eventually sided with), will be turned around and used to censor music and movies worldwide — and the legacy recording and film industries will have no one to blame but themselves.

Filed Under: canada, censorship, global, hollywood, injunction, jurisdiction, right to be forgotten, trademark
Companies: datalink, equustek solutions, google

Canadian Court: Yes, We Can Order Google To Block Websites Globally

from the that-seems-like-a-problem dept

Almost exactly a year ago we wrote about a troubling lawsuit in British Columbia, where a court ruled that Google needed to block access to a website globally. The case involved one company accusing another of selling counterfeit or copied equipment, and despite Google not even being a party to the case, said that Google needed to make sure no one could find the site in question via Google anywhere in the world. As we noted, this had tremendously problematic consequences. For example, China doesn’t think anyone should be able to learn about the protests in Tiananmen Square. Can it now order Google to remove all links to such references globally? That result seems crazy. And, of course, there was a separate issue of how the court even had jurisdiction over Google, seeing as it does not have any operations, staff or servers in British Columbia. Google stepped in to protest the injunction at the appeals court.

Unfortunately, the court has now ruled against Google, using the same sort of logic the lower court did — basically arguing that because Google is available in British Columbia, the court has jurisdiction, and because it’s trying to stop what it deems to be illegal actions from reaching Canada’s shores, it has every right to order Google to block things worldwide, lest someone from British Columbia decide to type “google.com” into their browser to avoid the “google.ca.” On the question of “doing business” in BC, the appeals court basically accepts the lower court’s confused understanding of things:

While Google does not have servers or offices in the Province and does not have resident staff here, I agree with the chambers judge?s conclusion that key parts of Google?s business are carried on here. The judge concentrated on the advertising aspects of Google?s business in making her findings. In my view, it can also be said that the gathering of information through proprietary web crawler software (?Googlebot?) takes place in British Columbia. This active process of obtaining data that resides in the Province or is the property of individuals in British Columbia is a key part of Google?s business.

Google says that even if it is concluded that it carries on business in British Columbia, the injunction was not properly granted, because it did not relate to the specific business activities that Google carries on in the Province. In my view, the business carried on in British Columbia is an integral part of Google?s overall operations. Its success as a search engine depends on collecting data from websites throughout the world (including British Columbia) and providing search results (accompanied by targeted advertising) throughout the world (including British Columbia). The business conducted in British Columbia, in short, is the same business as is targeted by the injunction.

In other words, if you don’t want to be subject to the laws of BC (with control over your entire global operations) don’t index websites based in BC? That’s crazy. While I doubt it will happen, it’s got to be tempting for some at Google to just say “okay, no more Google for BC or any website in BC.”

Now as for the nutty idea that a court in BC has jurisdiction over all of Google’s global operations, again, the court doesn’t seem even remotely concerned about that. It’s response is basically “yeah, so?”

Google raises the specter of it being subjected to restrictive orders from courts in all parts of the world, each concerned with its own domestic law. I agree with the chambers judge that it is the world-wide nature of Google?s business and not any defect in the law that gives rise to that possibility. As well, however, the threat of multi-jurisdictional control over Google?s operations is, in my opinion, overstated. Courts must, in exercising their powers, consider many factors other than territorial competence and the existence of in personam jurisdiction over the parties. Courts must exercise considerable restraint in granting remedies that have international ramifications.

And it notes that previous cases have said that, sure, BC courts have “worldwide jurisdiction.”

At one time the courts of this Province refrained from granting injunctions that enjoined activities outside of British Columbia…. In 1988, however, the English Court of Appeal held that it had jurisdiction to issue a worldwide Mareva injunction…. It is now over 25 years since the Supreme Court of British Columbia first issued a worldwide injunction…. The jurisdiction to do so was re-confirmed …. and is, today, well-established.

Google, quite reasonably, points out that while injunctions make sense against parties that actually break the law, it makes no sense to issue an injunction against a third party that has nothing to do with the party that actually broke the law. The court goes on a long and winding road saying “sure, but… in this case, it’s okay.”

Finally, the court addresses another concern raised by the Canadian Civil Liberties Association, noting that banning access to a website worldwide has serious free speech consequences. Once again, the court says “sure, but, we don’t care in this case.”

For that reason, courts should be very cautious in making orders that might place limits on expression in another country. Where there is a realistic possibility that an order with extraterritorial effect may offend another state?s core values, the order should not be made.

In the case before us, there is no realistic assertion that the judge?s order will offend the sensibilities of any other nation. It has not been suggested that the order prohibiting the defendants from advertising wares that violate the intellectual property rights of the plaintiffs offends the core values of any nation. The order made against Google is a very limited ancillary order designed to ensure that the plaintiffs? core rights are respected.

I note, as well, that the order in this case is an interlocutory one, and one that can be varied by the court. In the unlikely event that any jurisdiction finds the order offensive to its core values, an application could be made to the court to modify the order so as to avoid the problem.

In short, sure, banning speech around the globe from one court in British Columbia, Canada could have serious global free speech concerns, but… we really don’t like this website, so we’re not going to change the ruling. In fact, later in the ruling, the court basically says “hey, the idea that there may be some ‘legitimate’ speech on this website we’re ordering blocked globally is totally speculative”:

There has, in the course of argument, been some reference to the possibility that the defendants (or others) might wish to use their websites for legitimate free speech, rather than for unlawfully marketing the GW1000. That possibility, it seems to me, is entirely speculative. There is no evidence that the websites in question have ever been used for lawful purposes, nor is there any reason to believe that the domain names are in any way uniquely suitable for any sort of expression other than the marketing of the illegal product. Of course, if the character of the websites changes, it is always open to the defendants or others to seek a variation of the injunction.

And, thus, British Columbia believes it can order global blocking of any website its courts deem problematic in BC. One wonders if we’ll start to see “censorship tourism” migrating to BC courts now that its doors are open for global censorship orders.

Filed Under: british columbia, canada, counterfeits, global injunction, injunction, jurisdiction
Companies: equustek solutions, google

Canadian Court Believes It Has The Right To Censor The Global Internet; Not At All Concerned With Consequences

from the dangerous-ruling dept

In the wake of the awful European “right to be forgotten” ruling, it appears that a Canadian court is looking to get in on the over-aggressive censorship of the internet game. As highlighted by Michael Geist, the court in British Columbia has basically ruled that it can order Google to delete links to an entire website worldwide. The ruling in the Equustek Solutions Inc. v. Jack case is quite troubling on a variety of different levels, all of which should be called out for the problems and consequences (intended or otherwise) they are likely to create. First, in many ways, this ruling goes beyond the European right to be forgotten ruling, which at least limited the ruling to Europe. Not so with this court’s ruling, which basically argues that because Google operates worldwide, it is automatically amenable to any regulation around the globe (even though Google isn’t even one of the parties in the lawsuit!).

This is, frankly, a concern that we’ve been discussing for well over a decade — the question of “jurisdiction” for online activities. As we’ve noted, it’s somewhat crazy to argue that because you do something online, and that’s the accessible anywhere, that any laws from any countries apply worldwide. That’s a recipe for killing the internet, because it means that the most draconian laws automatically prevail. The stricter the regulations and the greater the censorship always win out under that scenario, since not obeying the most draconian rules automatically subjects you to liability. Such a ruling would have immense (and immensely troubling) implications.

And yet, that’s exactly what this BC court decides to claim. It almost entirely shrugs off the consequences, instead blaming them on Google for having the temerity to operate globally.

I will address here Google’s submission that this analysis would give every state in the world jurisdiction over Google’s search services. That may be so. But if so, it flows as a natural consequence of Google doing business on a global scale, not from a flaw in the territorial competence analysis.

The court seems confused about two things. One is the decision to open up global offices and to be subject to the jurisdiction of various countries where you have operations, and be subject to those laws for the users within that country. That already raises some questions. But, the court conflates the idea that a company may be subject to a local jurisdiction for the parts of the company operating in that jurisdiction, with the fact that an online service is available around the globe. The second, is the idea that because a ruling applies to the Canadian jurisdiction, it’s okay to enforce it around the globe from Canada. Google had already removed the links in question on the Google.ca search engine, but the court is saying it needs to go much, much further.

Think, for just a second, about the consequences of such a decision. As Michael Geist notes, it’s not hard to see where this gets very troubling very fast:

The implications are enormous since if a Canadian court has the power to limit access to information for the globe, presumably other courts would as well. While the court does not grapple with this possibility, what happens if a Russian court orders Google to remove gay and lesbian sites from its database? Or if Iran orders it remove Israeli sites from the database? The possibilities are endless since local rules of freedom of expression often differ from country to country.

Or, just go back to the European right to be forgotten ruling. Under this rationale, Europeans might seek to have such content deleted globally. Or how about China? We just reported on how successfully China has more or less deleted all references to Tiananman Square online within China. Now imagine that it had the power to do that globally? For years we’ve discussed libel tourism in which individuals and companies pick the “best” jurisdiction to sue someone for libel, using the claims that because it’s on the internet, the statements are available in that country (even if neither the speaker, nor the subject of the speech) are located in that country. Imagine what the internet looks like when such rulings can be determined to apply globally.

It’s not just that it creates a heckler’s veto for the internet. It’s much, much worse. It means that the most draconian, most repressive, most anti-free speech rules automatically apply to the entire internet, because one could just seek out the most extreme jurisdiction to bring cases, and then seek to apply them globally just because the content appears “online.” This is a disastrous ruling for the internet, for free speech and for freedom in general. Hopefully, the case is appealed and overturned.

Filed Under: canada, censorship, free speech, jurisdiction, libel tourism, search results
Companies: equustek solutions, google