Tuesday, 7 November 2017

Two big decisions examine web blocking in the USA

In the space of under a week there have been two big cases in the JUSA looking at web blocking - and with differing results. 

First off, a federal judge in California has issued a preliminary injunction preventing Canada’s Supreme Court from forcing Google to de-list websites for Datalink on its American search engine. The Canadian Supreme Court (Google Inc v Equustek Solutions Inc, 2017 SCC 34) affirmed the decision from the Supreme Court in British Columbia and ordered Google to delist a tech company’s website(s) worldwide. The music industry trade body Music Canada welcomed the judgement saying it was “a crucial development given that the internet has largely dissolved boundaries between countries and allowed virtual wrongdoers to move from jurisdiction to jurisdiction in search of the weakest enforcement setting”.

The web giant responded by saying the ruling conflics with the right to a freedom of expression  contained within the First Amendment of the US Constitution, and that the Canadian Supreme Court had no right meddling with the American Constitution. Google’s argued “This is about whether a trial court in a foreign country can implement a law that is violative of the core values of this country … imagine if we got an order from North Korea that said we could not publish anything critical of Dear Leader. Imagine if Russia doesn’t like what people are saying about Putin. It would be very dangerous to deny relief in this instance”.

There were no representatives of either Equustek or the Canadian Supreme Court in attendance, and Judge Edward Davila agreed with Google’s request for a preliminary injunction in the United States District Court for the Northern District of California. He agreed that “by forcing intermediaries to remove links to third-party material, the Canadian order undermines the policy goals [of Section 230 of the Communications Decency Act] and threatens free speech on the global internet” adding that “Section 230 of the Communications Decency Act states that third-party internet hosts, such as Google, cannot be held liable for offensive or illegal material generated by other parties”.

Digital rights group the Electronic Frontier Foundation welcomed the ruling, but said more needs to be done to stop other courts from issuing wide-ranging internet injunctions, like that issued by the Canadian Supreme Court in June saying “The California ruling is a ray of hope on the horizon after years of litigation, but it is far from a satisfying outcome. While we’re glad to see the court in California recognise the rights afforded by Section 230 of the Communications Decency Act, most companies will not have the resources to mount this kind of international fight”.

So with Equustek, the music industry won in Canada but ultimately lost in the USA. But web-blocking remains a preferred anti-piracy tool for the film and music sectors and both will take heart from a ruling in a separate copyright dispute which involed Sci-Hub, the website sometimes dubbed the "Pirate Bay of science" which was sued by ther American Chemical Society for distributing academic papers it had published without permission. 

Last month, magistrate judge John Anderson in the District Court for the Eastern District of Virginia recommended that a default judgement shoud award ACS $5 million in statutory damages and that "internet search engines, web hosting and internet service providers" should be ordered to "cease facilitating" access to Sci-Hub.

After Anderson's decision the Computer And Communications Industry Association submitted a paper to the court which stated that: "[The] plaintiff is seeking - and the magistrate judge has recommended - a permanent injunction that would sweep in various neutral service providers, despite their having violated no laws and having no connection to this case" which went against the wishes of Congress. : "
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Now Judge Leonie Brinkema has followed Anderson and issued the injuction, meaning US based registrars can't offer their services, and server farms can't host Sci-Hub. The order goes further, ordering “any person … including any Internet search engines, web hosting and Internet service providers, domain name registrars, and domain name registries, cease facilitating access to any or all domain names and websites through which Defendant Sci-Hub engages in unlawful access to, use, reproduction and distribution of the ACS [trade] marks or ACS's copyrighted works”.

The judge also ordered Sci-Hub's domains be placed on registryHold/serverHold to render their names/sites non-resolving. The decison imposed the maximum US$4.8 million to be paid to ACS as statutory damages.

https://www.theregister.co.uk/2017/11/07/us_judge_orders_net_shutdown_of_scihub/

http://www.completemusicupdate.com/article/us-court-knocks-back-canadas-global-injunction-over-ip-infringement/

https://www.thestar.com/business/2017/11/03/canadas-top-court-overstepped-cant-enforce-google-to-delist-search-results-in-us-judge-rules.html

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