back to article Canada to Google: You can't have your borderless cake and eat it too

Google-watchers young and old will savour the latest twist in the corporation's attempts to avoid laws it doesn't like. It's a landmark judgment in Canada that's unusual in several ways - not least for the argument that Google advanced. The case – Equustek Solutions Inc. v. Jack, presided over by Justice Lauri-Ann Fenlon – was …

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  1. keithpeter
    Windows

    Bing? DDG? Yahoo?

    Are there similar injunctions for these other search providers?

    I suspect an International Court of the Internet soon along these lines

    https://www.itlos.org/

  2. Credas Silver badge
    Unhappy

    Be careful what you wish for

    It's all very well gloating over Google being forced to de-index websites when it's over something we can (almost, probably) all agree with, but this kind of extra-territorial order has the potential to cause enormous damage. How happy would El Reg be if a nice compliant court somewhere like Liberia, say, was persuaded to make an order to get it de-indexed worldwide for some supposed infringement? It's not just Google that's going to be placed in an impossible situation if this takes off.

    1. Gordon 10 Silver badge

      Re: Be careful what you wish for

      But if I read this right - that's not what was being asked.

      Google were just being told to do a proper job of local de-indexing on their .ca domain, but in several of their arguments Google were trying to conflate that with global de-indexing.

      1. Credas Silver badge

        Re: Be careful what you wish for

        From the analysis linked to at the end of the article:

        [75] The inadequacy of this approach in the present matter is heightened by Google’s removal of specific URLs from only those searches initiated through Google.ca – a fact that came to the plaintiffs’ attention only after cross-examining Mr. Smith on his affidavit on May 21, 2013. As a result, the defendants’ blocked websites appear when searches are conducted from any country other than Canada, or when a search is conducted within Canada using a Google website other than www.google.ca.

        [76] The majority of GW1000 sales occur outside Canada. Thus, quite apart from the practical problem of endless website iterations, the option Google proposes is not equivalent to the order now sought which would compel Google to remove the defendants’ websites from all search results generated by any of Google’s websites worldwide. I therefore conclude that the plaintiffs do not have an out of court remedy available to them.

        So it is global de-indexing, not just on google.ca (or even just in Canada).

        1. tom dial Silver badge

          Re: Be careful what you wish for

          From further on in the linked article:

          "[159] The Court must adapt to the reality of e-commerce with its potential for abuse by those who would take the property of others and sell it through the borderless electronic web of the internet. I conclude that an interim injunction should be granted compelling Google to block the defendants’ websites from Google’s search results worldwide. That order is necessary to preserve the Court’s process and to ensure that the defendants cannot continue to flout the Court’s orders."

          1. oolor

            Re: further on

            That's right before the end!

            It was a very interesting ruling. The part where they (Google) tried to claim that search and ads were unlinked and that it was a 'passive' site are definitely good for a laugh.

      2. Grikath Silver badge

        Re: Be careful what you wish for

        yup.. The judge pointed out that Google ( and not just Google) is quite capable of not returning results on [X] when the originating request falls within the legal borders of [Y], leaving the rest of the world alone.

        I have the suspicion this is exactly what Google must do on a regular basis to filter stuff where things like differing Legal Age and other such considerations come into play anyway to avoid ...Unpleasantness.

    2. Anonymous Coward
      Anonymous Coward

      Re: Be careful what you wish for

      Google probably doesn't do business in Liberia and wouldn't therefore have to pay any attention to an order from a Liberian court. If a country where Google does do business started making very inconvenient court orders then Google could always choose to stop doing business in that country. I don't think this Canadian court order is anywhere near that inconvenient for Google.

  3. Anonymous Coward
    Anonymous Coward

    I'm very confused by this.

    If Datalink stole trade secrets and is using them to sell products then why don't this company go after Datalink. If the Judge in Canada has already banned the sale of the products then there must be proof this is the case, so why can't Datalink be sued by the owner of the patents?

    There is a lot more to this story than Google being a bit awkward in complying because simply blocking them from sale in Canada seems a bit of a light punishment, when in reality they should be stopped from producing the product at all.

    1. Richard 12 Silver badge

      Indeed.

      Somebody is hosting that site, and they are either Datalink or somebody paid by Datalink.

      Thus taking money from Datalink will shut it down.

      1. Gordon 10 Silver badge

        Mybe its only my reading of the article but the inference I was making was that whilst Datalink had been found guilty of using trade secrets in Canada - it hadn't in the US. Meaning that it is still free to help sell its products in the US, hence having distributors - that seeing a crafty buck - set up websites that can cover both US and Canada.

        I have to wonder here if the root cause is failure of the aggrieved party to go after Datalink in the US via copyright, patents or what ever other due process exists and therefore instead getting the Canuck judge to extend the reach of his judgment into the US - albeit only for those results accessible by a Canuck domain (.ca).

        The fact that the distributors are playing whack-a-mole with google over the domain names - suggests to me they may be a little bit shady. i.e. the only reason to try to get around the block is if they know of and are deliberately trying to flout the judges order.

        Having said that - with their vaunted search prowess Google should excel at whack-a-mole of this type.

        1. Trevor_Pott Gold badge

          It couldn't possibly be because two different court systems came to two different decisions about whether or not trade secrets were violated, eh? And if they did, obviously the USA's judgement should supersede that of Canada's.

  4. JeffyPoooh Silver badge
    Pint

    "...based on trade secrets stolen..."

    The GW1000 is as far as I can tell a little box-of-electronics--and-software-tricks, and therefore it can be reverse engineered relatively easily (days, weeks at most). Therefore, there seems to be little basis for any Intellectual Property protection whatsoever under the 'Trade Secret' provisions. Trade Secrets are most appropriate for manufacturing *processes* that can be performed behind closed doors.

    1. big_D Silver badge

      Re: "...based on trade secrets stolen..."

      In this case it was employees leaving the one company and building an "identical" product at the second company (the article doesn't say if they were poached or left and started up a new company). Under those circumstances that sounds like a reason for banning the product.

      Reverse engineering is also, generally, frowned upon, you usually need to "clean room" an alternative, something which would be very difficult to prove, if the people in the clean room had built the original product, or had intimate knowledge of the original product.

  5. NogginTheNog
    WTF?

    Confused

    Firstly, I'm not losing ANY sleep seeing Google getting skewered by courts as I think they're becoming a monster that really needs to be reined in! But I am a little confused about these court rulings against SEARCH PROVIDERS, who at the end of the day only reproduce content published elsewhere? Why aren't all these legal orders being directed at the original publishing websites? Surely instead of asking Google et al to remove links to the offending sites, why not try to remove the offending material at source? Yes I can see how this might not be simple or easy, but to me it should be the correct approach, and not passing the buck to the indexers instead?

    1. MachDiamond Silver badge

      Re: Confused

      Why aren't a couple of Mounties sent over to the company premises that are selling this kit in violation of the court orders against them and put a seal on the doors? Maybe even arrest a few people. Google is stuck out on the periphery. Google can't have human eyeballs on all of the data they index, it just isn't possible to offer the services they do without a big caldron of automation. What would happen if Google did de-index the site and the operators shifted to another very similar domain name a couple of hours later and showed up on Google again shortly thereafter? Back to court again for another judgement? The out-of-juristiction aspects are as presumptuous as what US courts do. FACTA anyone?

      This all has the tang of the DCMA notices that get sent to Google and not to the admins of the accused web sites. Google doesn't own the internet, they're just a big company that sells services. They're aren't anybody's mother either.

  6. Steven Davison

    Google was appealing the order it received to delist the websites globally, cos it didn't want to do that.

    I don't think the case was brought directly to google's door, reading the article...

  7. ratfox Silver badge
    Mushroom

    Oh boy, wait until China discovers this

    Dear Google, following Chinese law, our Chinese judge orders you to remove the following pages from your index worldwide:

    https://en.wikipedia.org/wiki/Tiananmen_Square_protests_of_1989

    https://en.wikipedia.org/wiki/Tibetan_independence_movement

    https://en.wikipedia.org/wiki/Taiwan_independence_movement

    http://www.lulz.org/xi-jiping-in-funny-hat.html

    1. RMycroft

      Re: Oh boy, wait until China discovers this

      First I would expect them to send an army of socks to thrash the Wikipedia articles. I doubt the even mighty ARBCOM would follow the Scientology example and block anyone editing from a Chinese IP address.

  8. heyrick Silver badge

    being ordered to do something that could require it to contravene a law in another jurisdiction

    Huh? This the same Google that seems to think the laws of other countries don't apply?

  9. Andy The Hat Silver badge

    "Dear Google, following Chinese law, our Chinese judge orders you to remove the following pages from your index worldwide: ..."

    Isn't that what they have already done? Such pages, although global in extent, are filtered at China's boundaries, which is technically very similar to what has been asked for in this Canadian case.

    1. ratfox Silver badge

      According to the article, the Canadian judge has ordered Google to stop showing these results to anybody in the world, not just to Canadians. Because most of the business made by the companies is made outside of Canada.

      Also, technically, it is the Chinese government firewall that is filtering the results in China, not Google.

  10. bigtimehustler

    And yet their point about one law in one country possibly contravening another in another jurisdiction is quite true and could happen, the judge has just chosen to sweep that under the carpet. What if another country, possibly where this company is based demands google unblock it because they doing something that is legal in that country? Is the Canadian Judge so big headed to think his judgement outweighs any others in the world?

    1. bigtimehustler

      To people who down vote, either you have not read the article correctly and so you think this only relates to Google Canada (and it does not, the judge specifically says worldwide search on other domains) or you somehow believe contradicting laws from each country in the world can somehow magically coexist and all be applied at the same time to a company?

    2. heyrick Silver badge

      "Is the Canadian Judge so big headed to think his judgement outweighs any others in the world?"

      Isn't this pretty much the same sort of idea as the EU's "Right to be forgotten"? How is this handled? That URLs relating to British citizens are blocked from google.co.uk, or everywhere? I mean - if it was the same argument as this, surely we could sidestep the entire EU ruling and the storm in a teacup that it is causing and discover that the new guy at work was a perv who liked to look up his teacher's skirts....by looking it up on google.com (you know, the default option)?

      1. ratfox Silver badge

        Re: "Is the Canadian Judge so big headed to think his judgement outweighs any others in the world?"

        According to what Google said, results for non-European TLDs are not modified. Google.com still returns everything.

  11. fridaynightsmoke
    Big Brother

    Slippery slope

    "You need to block child porn"

    "Well you can block child porn, so you can block 'hate speech' too"

    "You can block hate speech, so why not this advertisement that I consider dubious"

    "You can block that dubious ad, so why not X?"

    1. John Tserkezis

      Re: Slippery slope

      "You can block that dubious ad, so why not X?"

      It's a slippery slope allright. In Australia, we got to a Queensland Dentist's website being banned. That is, before the list "that didn't exist" was leaked, then subsequently fixed. The fact it was banned in the first place means they had hard and fast procedures in place with absolutely no background checks at all.

      Is it going to stop them? I don't think so, I just think they're going to learn how to hide it better.

    2. Steven Roper

      Re: Slippery slope

      I wish I could upvote this 100 times.

      This principle lies at the heart of all anonymising processes. It is an unfortunate fact that any anonymising system will protect paedophiles and terrorists if it is to equally protect good people fighting for freedom and human rights in bad regimes, because the alternative is that if the system can be compromised to allow the tracing of paedophiles, it can be compromised to trace anybody else a legal authority doesn't like. There can be no half measures; a system is either uncompromisably anonymous or it is not, and the downside is that uncompromisable anonymity protects evil people as well as good ones.

      Technology doesn't do morality, and regardless of all the rights laws and privacy protections in the world, what matters is not whether a compromising agency will violate that protection, all that matters is whether it can.

  12. JaitcH
    Thumb Down

    British Columbia - Canada's California - the province where strange things happen

    The court that made this decision is the equivalent of a State supreme court in the States. Furthermore this is a single judge decision and still has more steps to take before it enters the realm of the Supreme Court of Canada.

    Just because a BC judge is making like the USA as a super-power, the games are not over yet.

  13. Anonymous Coward
    Anonymous Coward

    Spanish selection

    Pursuant to this court decision, and on the EC court decision on the right to block searches on anything you wouldn't like people to find about you, the Spanish football association will ask google to block all the searches worldwide for the FIFA World Cup 2014, the associated matches and results, and the Spanish national football team of 2014.

    1. Credas Silver badge

      Re: Spanish selection

      Perhaps Call Me Dave could give them a ring and ask them to add England to their block? With an election coming up soon he could probably do with something to lift the country's spirits. Or to avoid cheering up the Scots too much just before their referendum.

      1. Kevin Johnston

        Re: Spanish selection

        To be strictly accurate, it is possible to show that England lasted longer in this World Cup than Spain regardless of the results of the match tonight etc...

        Of course you would have to be the sort of pedant that uses number of minutes since the opening ceremony as your timeframe rather than minutes played on the pitch but whatever....any method that works, well, works

      2. DavCrav Silver badge

        Re: Spanish selection

        And that comment was made even before England's pathetic display against Uruguay...

    2. David 164 Bronze badge

      Re: Spanish selection

      I'm sure the Spanish FA are already filing the paper work.

  14. The Dude
    Happy

    Bob should be happy

    Good on ya, Bob... the court came through this time.

  15. Keep Refrigerated

    I'm old enough to remember...

    When there was just a google.com - the internet was young and free and when you visited a website and just so happened to be located in [Territory X] you still got the pure familiarity of [Territory Y].... then along came the cookies, the IP tracers, the media companies and suddenly the beautiful internet got fractured into these bullshit artificial silos....

    The side effects being that if you're in a country that does not share your mother tongue - before you can even browse most websites you've got to locate their language options - and that's the websites that have bothered to code one - some won't even let you modify the fucking URL!

    I can still remember my first experience of trying to work out where Google hid their language settings whilst in Saudi Arabia..... and they absolutely did not let me keep the English language across their sites or in a new browser session - "No, you're in Saudi Arabia that means you're a Saudi to us - here's some Arabic.... enjoy motherfucker!"

    1. asiaseen

      Re: I'm old enough to remember...

      Here, here. I'm in Hong Kong and Google will let have nothing but Chinese.

  16. SoaG

    Looking at Google.ca

    In spite of having this appended to the bottom of the 1st page.

    "In response to a legal request submitted to Google, we have removed 6 result(s) from this page. If you wish, you may read more about the request at ChillingEffects.org"

    Said 1st page still includes links to US retailers.

    So yes, as a matter of principle, it does seem odd that Equustek seems to be pursuing this only indirectly and only in Canadian, not US courts.

    However, as a practical matter, how many legacy PLCs are out there that need an ethernet adapter but have not yet got one in the last ~15 years? How many of that pool (shrinking as outdated equipment is replaced/manufacturing leaves the country) would Equustek have to sell to at $500-1500/unit to cover legal costs in the slower and more expensive US court system and still turn a decent profit on them?

  17. John Savard Silver badge

    Perplexing

    If the U.S. company Datalink Technologies Gateways is, in fact, using stolen technology, why haven't U.S. courts stopped it from manufacturing the items in question? Surely this is the more appropriate remedy. And, in any case, even if the U.S. courts were biased in favor of a home company, wouldn't it be possible to obtain a judgment with the result that the products in question would be stopped at the border by Canada Customs?

    If the products are legal in the United States, then they could be sold among other products by legitimate resellers that also sell other products from other manufacturers. If those retailers are prevented from appearing in Canadian Google search results, litigation under NAFTA is a real possibility.

  18. Stretch

    Need to out of jurisdiction

    C'mon google. Lets have some orbiting data centers with ansible connections. Quick. Can't be that hard.

  19. James 100

    Retaliation time

    Since the judge is attempting to censor my search results here in the UK, where he has as much authority as I have over matters in Canada, I hereby order that the court order be shredded and expunged from the Internet globally.

    It's a dangerous precedent indeed: I hope the judge gets slapped down hard with a map explaining that his authority extends no further than Canada's borders and that what appears on, say, Google.co.uk for users in the UK is precisely none of his court's business whatsoever.

    (I'm alarmed enough at the idea of gagging third parties to obstruct the business of someone claimed to be infringing IP, though I know that's long been the case with DMCA; if the court is unable or unwilling to enforce its ruling on the actual infringer, perhaps that's because the case is in the wrong court in the first place? Go after the infringer, wherever that may be, don't go gagging other people instead because real work is too inconvenient.)

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