Are Google Piracy Links Protected by the First Amendment?

Following a controversial court ruling in Canada over piracy links, Google is fighting back in California.  But is piracy protected by the Constitution?

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 Equustek’s ex-employees, Datalink Technologies illegally sold their competitor’s 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.

“Removing a website link from the Google search index neither prevents public access to the website, nor removes the website from the internet at large.  Even if a website link does not show up in Google’s search results, anyone can still access a live website via other means…finding the website through other search engines (such as Bing or Yahoo).”

In the complaint, lawyers for the company claim that “Google is not the internet.”  It doesn’t 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 hosts—not Google.”

Lawyers for the company laid out three causes of action.

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

“The First Amendment provides: ‘Congress shall make no law . . . abridging the freedom of speech, or of the press.’ U.S. CONST. Amend. I. Internet search results are fully protected speech under the First Amendment.”

Enforcing the Canadian ruling in the United States would violate the company’s First Amendment rights.  The Canadian ruling, claims Google, “furthers no compelling interest (nor a substantial interest).”  The existence of Datalink’s 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 hasn’t gone after third-party websites that prominently display the infringing links, including social media and press websites.  Equustek also hasn’t filed a claim to stop the sale of Datalink products on Amazon.

Enforcement of the Canadian ruling, says Google, will cause it “irreparable injury absent injunctive relief.”

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.”

Equustek’s initial filing is grounded in Canadian trade secret law, not US federal intellectual property or trade secret laws.  Therefore, it can’t 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 borders—its natural habitat is global.”   By saying this, the high court justified its global injunction against the company.

Equustek’s counsel argued on the same principle.

“Whether the order might be enforceable in the United States is a question for US courts and has nothing to do with this case.”

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,

“The Canadian Order purports to place the Canadian court in the position of supervising the law enforcement activities of a foreign sovereign nation (the United States) against the United States’ own citizens on American soil.”

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 Google’s 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)

2 Responses

  1. Will Buckley

    At some point this knowingly supports criminal activity has to come into play in these decisions. While that may never happen in the US, where google has tremendous power and influence, it’s going to happen with countries outside the US.

    To them, powerful monopolies that divert huge streams of revenue away from their countries are a serious threat to their own well being.

  2. Vince Serf

    This is a stupid argument for Google to make. Either it is a neutral third party simply hosting links. Or this is Google’s “Speech.” Which in that case invalidates its saFe harbors. This is really an indictment of the 9th Circuit if Google wins. This circuit is captured by Silicon Valley.