I am a published author on technical subjects, and therefore a beneficiary of copyright. I have also been a close follower of the debates around website blocking and de-listing that culminated in Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 (CanLII).
I would like to suggest that the CRTC not support an extra-legal mechanism for the blocking of websites and the removal of them from search services, but instead follow the Supreme Court decision in Google vs Equustek and support existing court and court-approved Alternative Dispute Resolution (ADR) approaches to stopping copyright infringement.
What we have learned from Equustek
In the Equustek case, the courts dealt with the sale of intellectual property that did not belong to the seller, in that case trade secrets, and considered the questions of:
- what to do with a company who had been ordered to stop their unlawful behavior,
- had fled to an unknown foreign location, and
- continued to sell material they did not have rights to, and finally
- whether Google, an innocent third party, could be required to not provide links to the company’s pages.
This is substantially similar to the case of a movie “pirate” who uploads a copy of a file they do not have the rights to. They send a copy to a foreign site that makes it available for download, as happened here, and the requested remedy is that of blocking access to that site by a third party such as an Internet Service Provider or Google.
The company that owned the intellectual property, Equustek, asked the courts of British Columbia to do two things:
- First, to prohibit the criminal company from carrying on business on the Internet, and
- Second, to enjoin Google from displaying any part of the company’s websites in their results, worldwide.
On appeal from Google, the Supreme Court of Canada found in favor of Equustek and granted a worldwide ban on Google displaying any part of or links to the company’s websites, continuing until the criminal company was brought to trial.
How this might be applied to website blocking
In my view, the first part of Equustek is by far the strongest. The company who was selling Equustek’s intellectual property was found to be acting illegally, and was enjoined from selling it world-wide.
They had the opportunity to be head by the courts, and indeed did try to defend themselves. As it happens, they fled the country when it became apparent that they were losing.
The worldwide ban put other countries on notice: the company had been found to be a criminal by a lawful court in Canada. Other countries with website-blocking or search de-indexing laws could apply their laws against the criminals and block, de-list or arrest them, according to their own rules of jurisprudence.
The second part is the blocking that has been asked for here, and can apply as much against a search provider as an ISP. This is actually a stronger defense against copyright infringement than the Asian Television Network and FairPlay Coalition have asked for.
Role of the CRTC
The CRTC can play a part, if it choses, in several roles.
It can promote compliance with the above orders, by education and routine inspection of its licensees, and report problematic issues to the courts when it encounters them.
It can encourage small businesses and individuals to take advantage of these decisions, and educate them about the processes used by major publishers such as the coalition members. One way it might do so is to encourage the use of alternative dispute resolution mechanisms by small companies and individuals, both as plaintiffs and defendants of infringement actions.
And finally, the CRTC can advance all its other roles by not needing the expense of creating a non-profit tribunal to serve as a kind of court for copyright crimes. In particular, it need not suffer the expense of legal challenges from those who see such a tribunal as a means of extrajudicial censorship.