The Canadian Supreme Court brings music to the ears of the music industry

August 2017

Internet, digital


The Canadian Supreme Court has brought music to the ears of the music industry, although it’s not a music case! 

It’s no secret, Google regularly links to content that is an infringement of copyright. It is also no secret that Google de-lists specific web pages that link through to copyright infringing content, but does not actually de-list the whole website.  Now the Supreme Court has ruled that the internet giant Can be forced to remove results worldwide, although the decision criticised by civil liberties groups who argue the judgment sets a precedent for censorship on the internet.

The landmark ruling from Canada’s Supreme Court, which will undoubtedly have a major impact in the music industry, comes in the case of Google v Equustek. The music industry has been complaining, for some time that whilst Google does remove individual web pages, it will not remove the whole website. And indeed it’s always a game of ‘whack a mole’ – as soon the infringing content is removed, it then just pops up again. And it should be noted, safe harbour obligations provide that Google should de-list the web page, but there is no obligation to de-list the whole website. This is a particular problem to the music and media industries, it is often the case that a web page will be de-listed one day and the next day a mirror page will appear – the Pirate Bay’s ever changing URLs were a great example of this

Equustek Solutions (Equustek), are a technology company based in British Columbia Canada and they accused another tech company, Datalink Technology Gateways (Datalink) of taking one of its products and relabelling it as its own. In addition Datalink was accused of taking Equustek’s confidential files and using the information to sell a product that competed with Equustek’s. 

Back in 2011, Equustek secured an injunction ordering Datalink to return all confidential information it had obtained, to cease the sale of the Equustek products and to route people wishing to obtain the Equustek products to Equustek itself. Datalink then went on to fail to comply with the injunction, and subsequently moved to a unknown location. Guess what… it continued to sell the Equustek products. It’s now 2012, Datalink and its director are now found to be in contempt of court. They have failing to make contact with the court for some time and a warrant for their arrest is out.  

Now it is time for Google’s involvement, with Datalink continuing to sell Equustek’s products, Equustek sought an injunction ordering Datalink to stop online trading. Where Datalink was in breach of the injunction Google went ahead and de-listed the web pages. Guess what… Datalink kept an eye out for the pages that had been deplisted and would create new pages to sell the products. That old game of cat and mouse, a web page will be delisted one day and the next day a mirror page will appear. 

Equustek then went back to court to obtain an injunction, it was hoped that the injunction would see Google ordered to de-list any Datalink website.  Google didn’t want to play ball, it argued that it was not a party in the dispute and that free speech would be hindered. 

The case eventually reached Canada’s Supreme Court in which it was ordered that Google de-list Datalink’s websites on a global basis. The (7-2 majority) of the court went on to state that if the injunction were to breach laws in other jurisdictions, free speech included, Google should explain that to the courts in BC and they would amend the injunction. 

As so many websites provide links to copyright infringing material, and the pages get de-listed by Google one day but a new link is back the next, Canada’s Supreme Court, might just be onto a winner with their global injunction. Although I am sure there are many advocates for free speech that will not be feeling the same way. 

Chief Executive officer of the International Federation of the Phonographic Industry, Frances Moore, said “Canada’s highest court has handed down a decision that is very good news for rights holders both in Canada and around the world. Whilst this was not a music piracy case, search engines play a prominent role in directing users to illegal content online including illegal music sites. If the digital economy is to grow to its full potential, online intermediaries, including search engines, must play their part by ensuring that their services are not used to facilitate the infringement of intellectual property rights”. 

OpenMedia, a Canadian group campaigning for open communications, opposed the ruling.

“There is great risk that governments and commercial entities will see this ruling as justifying censorship requests that could result in perfectly legal and legitimate content disappearing off the web because of a court order in the opposite corner of the globe,” said spokesman, David Christopher.

Google Inc v Equustek Solutions Inc, 2017 SCC 34 

By Samuel O’Toole Trainee Solicitor

No Comments

Comments are closed.