For our first guest contributor, Lauren Peebles, a 2L law student at the University of Calgary and president of the Intellectual Property Law Club takes a look at developments in Canada and the US following the decision in Google Inc v Equustek Solutions Inc, 2017 SCC 34.
In 2017, the SCC upheld an injunction for Google to de-list websites worldwide that were illegally selling copyrighted material in Google Inc v Equustek Solutions Inc.1 Previously, Canadian courts have been reluctant to get materially involved in internet-based intellectual property issues. However, Equustek established an injunction as a remedy for inventors looking to enforce their intellectual property rights.
At the time, Equustek was hailed as a landmark decision for protecting intellectual property on technological platforms.2 However, a review of Google’s actions following the decision highlight an issue with enforcing legal decisions for internet-based services. Google went to the US federal court after the injunction was upheld in Canada.3 The US Federal Court quashed the order, citing section 230 of the US Communication Decency Act.4 The section stated that section 230 provides for “immunity that protects providers of interactive computer services from liability arising from content created by third parties.”5 This section protects free speech on the internet. As a result, Google no longer was required to de-list websites originating in the US.
The Canadian case hints at a balancing act between freedom of expression and intellectual property rights. Many human rights commentators slammed this decision as it possibly lays the foundation for justifying censorship.6 However, Justice Abella makes a clarification:
This is not an order to remove speech that, on its face, engages freedom of expression values, it is an order to de-index websites that are in violation of several court orders. We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods. 7
The path forward for those wishing to litigate intellectual property infringement today in Canada is clear. However, enforcing decisions worldwide is much less certain. With the interconnected nature of technology, inventors may have difficulty substantially preventing intellectual property theft.
Thank you to Lauren Peebles for her contribution
[1] Google Inc v Equustek Solutions Inc, 2017 SCC 34
[2] Ibid.
[3] Google LLC v. Equustek Solutions Inc., 2017 WL 5000834 (N.D. Cal. Nov. 2, 2017).
[4] US Communication Decency Act of 1996, 47 USC § 230.
[5] Ibid; “Google v. Equustek: United States Federal Court Declares Canadian Court Order Unenforceable” (November 16, 2017),Loh, A, and Weston, M, Jolt Digest, online: <https://jolt.law.harvard.edu/digest/google-v-equustek-united-states-federal-court-declares-canadian-court-order-unenforceable>
[6] “Disappointing Supreme Court ruling has worrying implications for online free expression and access to information in Canada and across the globe”, (June 28, 2017), Christopher, D, Open Media, online:
[7] Supra note 1, at para 48.
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