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I touched upon this, but honestly this is a very, very large subject that requires familiarity with the Berne Convention and TRIPS/ACTA in order to fully explai

by ABCLAW 9y ago

I touched upon this, but honestly this is a very, very large subject that requires familiarity with the Berne Convention and TRIPS/ACTA in order to fully explain. In the Canadian decision, the de-listing order is contingent on that order not being contrary to compliance requirements elsewhere in the world. However, the SCC doesn't have knowledge of all of those laws, nor should it. Accordingly, it stated the burden upon showing a contradiction rests with the applicant, Google, who didn't want to comply with the order. Google would need to cite specific laws they were in contravention of, rather than just pleading that there may, maybe, somehow be a contradictory requirement. What if there wasn't? Should Google still get to plead international comity in that instance? No. Positive freedom of speech legislation might work as an alternate requirement, but this was not plead, and this was not a situation where the speech in question is political or particularly protected. It is a very clear instance where a supplier has fled Canada (and they can't find where they're based) in order to attempt to continue crystal clear trademark violations which are causing actual damage to a Canadian business. The current international trademark framework means that the majority of nations in the world would actually require compliance with this order (well, not exactly, but close enough). The big question is how that machinery should be activated. If the Respondent had the money to pursue passing-off litigation in every jurisdiction, they would likely arrive at a similar result, but functionally, a small company won't be able to pay x200+ times the legal fees for a similar result while their dealflow is being sapped. This decision, even read very broadly, wouldn't provide countries with the ability to de-index items. Countries don't need that ability; they already have it. Most, however, have bound themselves not to exercise it, but certain, like China, actively pursue control as an overt element of their policy agenda. I feel like I'm doing a bit of a disservice to the topic, because there is a lot of small nobs and levers that I can't get into without exploding this into a 20 page memorandum. I am confident in stating that the freedom of speech concerns arising from this case are not as dire as portrayed. Edit: Made the middle a bit clearer.

visarga 9y ago
I suppose limitations apply by Google's TLD. Why don't Google block by geo-IP? If request comes from Canada, on any Google property, apply the filter. If request comes from China, it has nothing to do with Canada, so they should have nothing to complain about. I don't like geofencing, but this court decision is absurd.
- ocdtrekkie 9y ago
  Arguably, Canada can complain about whatever they want (according to their laws), that affects a company that hopes to do business in their country. The US prohibits American companies from selling weapons to it's enemies. By your logic, this transaction, which takes place outside of the US, is none of their business. But you had better believe they make it their business. Google is free to tell Canada to shove off... if Google doesn't want to do business in Canada anymore. And it's in Canada's best interests to protect their citizens' intellectual property both locally and abroad. There's nothing "absurd" about this decision. Canada has said that this must be the case if Google does business there. There's a huge issue with people's notions that no country should be able to regulate Google's behavior. The nature of them being an international corporation should not mean they are immune to everyone's laws. Rather than an international corporation being subject to nobody's laws: International corporations should be required to follow all of them.
  - avar 9y ago
    > The US prohibits American companies from selling > weapons... Yes, but this is actually instructive. Google is not a Canadian company, so the more accurate comparison would be the US trying to control who the Russian Kalashnikov Concern sells AK-47's to, just because they're also for sale in the US. > The nature of them being an international > corporation should not mean they are immune > to everyone's laws. Nobody's advocating that the likes of Google should be immune to everyone's laws, but rather that it's overstepping that any given country is going beyond just instructing an international corporation on how to behave within their borders. > International corporations should be required > to follow all of them. So if Saudia Arabia decides that showing any images of women more revealing than the niqab in Google Images that should be applied globally? This is just a recipe for a race to the bottom.
    - ocdtrekkie 9y ago
      There's realistically no limit to what a country can require if an international company wants to do business within their borders. Surely, Saudi Arabia could make that requirement, and then Google would need to decide whether or not it wanted to comply, or stop doing business in Saudi Arabia. Presumably, in your example they would likely pull out of Saudi Arabia, given the scope of the impact on everyone else versus their income from Saudi Arabia. In this case, Canada has ordered one search result, so Google obviously is going to comply rather than losing the Canadian market (and it's three offices there). Countries have no inherent requirement to make it easy for international businesses to operate, and I don't feel they should. They should be looking out for their citizens first and foremost, and that's exactly what Canada did here.
kodablah 9y ago
Can you help me understand something. Why do they have to cite laws this ruling is in contravention of instead of citing laws that Google is in convention with to prevent worldwide dissemination? One would think that you don't have to prove what the government proposes you do in region X to be illegal there, but rather prove that what you are already doing in region X to be legal there.
- ABCLAW 9y ago
  The Supreme Court did cite the test governing the provision of interlocutory orders. That test is well known law from RJR MacDonald. There's a bit of a blurb regarding the case in my comment below, but you can look up the case and you'll find the full test and commentary. The government isn't proposing anyone do anything; A private party is, and asked for the court's help. The second private party is very clearly acting illegally and appropriating the value of the first party's brand. They've gone as far as to flee the province to try and dodge the court order which attempts to halt them from doing so. The first party asked google to take down their listings because those listings are the channel through which the illegal brand appropriation is occurring. The court agreed. Google said they didn't want to comply with the order partially on the basis that there might be some compliance contradictions. The court said "Sure, but you didn't plead any evidence that that's the case. We judge what's in front of us. If you're serious, we have a mechanism to deal with it. Make an application like anyone else who wants to amend an interlocutory order. Bring us evidence there's another law which prohibits you from taking the listing down, and we'll amend the order". The reason why courts only judge what's in front of them is so that the other side can actually argue against their points. If Google said "Law X from Country Y prevents us from doing that", the Respondent could reply "The only thing Law X from Country Y does is regulate how sweet twinkies can be, please stop lying to the court". The alternative, forcing the Respondent to prove that there is NO contradiction in every other country, is impossible. Google's response, however, requires 1 list distribution email in legal saying "Anyone have a problem in their country? Let me know". This is the "balance of convenience" portion of the RJR MacDonald test.
  - kodablah 9y ago
    The unfortunate part of that test appears to be that the private party can request the moon. A reasonable person might expect a court that is required "judge what's in front of them" to not apply their judgement to foreign jurisdictions. I wonder how this would be applied to a physical storefront from a global retailer that happened to have presence in Canada...I suppose they'd be forced to remove physical non-Canadian products from even their non-Canadian stores. Because hey, retailer, show us where it's illegal for you to remove this product. You can't? Then apply our ruling worldwide. Is my analogy off? Or is it, as I suspect, the fact that the decision is easier to accept digitally part of the reason why it's being levied? The RJR MacDonald test appears incredibly subjective. This test, if in fact it is narrowly construed as show-us-where-you-can't, is a scary defendant test to counter decisions. Or if the test is being vaguely construed for these means, it is equally scary.
qb45 9y ago
> crystal clear trademark violations Nope, it's about alleged trade secrets, not trademarks. http://www.courts.gov.bc.ca/jdb-txt/SC/14/10/2014BCSC1063.htm http://www.courts.gov.bc.ca/jdb-txt/SC/14/10/2014BCSC1063.ht... > The current international trademark framework means that the majority of nations in the world would actually require compliance with this order Given the above, I'm not sure if it's still true. And even if it was, I fail to see why Canadian court should be allowed to effectively make this decision for others. Have all countries in the world obliged to recognize Canadian censorship orders yet? > I am confident in stating that the freedom of speech concerns arising from this case are not as dire as portrayed. Meh, it's not exactly reassuring if you say that this ruling doesn't matter because it's business as usual.
- ABCLAW 9y ago
  Unfortunately, the evidence you've brought to the table actually doesn't agree with your position, but you aren't trained enough to understand it yet. Read the link you cited, specifically paragraph 5. Look up passing-off as a tort, then look up Subsection 7 c) of the Canadian Trademarks Act. There are often trade-secret dimensions in situations where a supplier is committing trademark infringement, but this is a clear situation where there's PLENTY of trademark infringement going on.
  - qb45 9y ago
    Sorry, I must have missed this part. FWIW, they don't seems to do it anymore.

by ABCLAW 9y ago

visarga 9y ago

I suppose limitations apply by Google's TLD. Why don't Google block by geo-IP? If request comes from Canada, on any Google property, apply the filter. If request comes from China, it has nothing to do with Canada, so they should have nothing to complain about. I don't like geofencing, but this court decision is absurd.

ocdtrekkie 9y ago
Arguably, Canada can complain about whatever they want (according to their laws), that affects a company that hopes to do business in their country. The US prohibits American companies from selling weapons to it's enemies. By your logic, this transaction, which takes place outside of the US, is none of their business. But you had better believe they make it their business. Google is free to tell Canada to shove off... if Google doesn't want to do business in Canada anymore. And it's in Canada's best interests to protect their citizens' intellectual property both locally and abroad. There's nothing "absurd" about this decision. Canada has said that this must be the case if Google does business there. There's a huge issue with people's notions that no country should be able to regulate Google's behavior. The nature of them being an international corporation should not mean they are immune to everyone's laws. Rather than an international corporation being subject to nobody's laws: International corporations should be required to follow all of them.
- avar 9y ago
  > The US prohibits American companies from selling > weapons... Yes, but this is actually instructive. Google is not a Canadian company, so the more accurate comparison would be the US trying to control who the Russian Kalashnikov Concern sells AK-47's to, just because they're also for sale in the US. > The nature of them being an international > corporation should not mean they are immune > to everyone's laws. Nobody's advocating that the likes of Google should be immune to everyone's laws, but rather that it's overstepping that any given country is going beyond just instructing an international corporation on how to behave within their borders. > International corporations should be required > to follow all of them. So if Saudia Arabia decides that showing any images of women more revealing than the niqab in Google Images that should be applied globally? This is just a recipe for a race to the bottom.
  - ocdtrekkie 9y ago
    There's realistically no limit to what a country can require if an international company wants to do business within their borders. Surely, Saudi Arabia could make that requirement, and then Google would need to decide whether or not it wanted to comply, or stop doing business in Saudi Arabia. Presumably, in your example they would likely pull out of Saudi Arabia, given the scope of the impact on everyone else versus their income from Saudi Arabia. In this case, Canada has ordered one search result, so Google obviously is going to comply rather than losing the Canadian market (and it's three offices there). Countries have no inherent requirement to make it easy for international businesses to operate, and I don't feel they should. They should be looking out for their citizens first and foremost, and that's exactly what Canada did here.

kodablah 9y ago

Can you help me understand something. Why do they have to cite laws this ruling is in contravention of instead of citing laws that Google is in convention with to prevent worldwide dissemination? One would think that you don't have to prove what the government proposes you do in region X to be illegal there, but rather prove that what you are already doing in region X to be legal there.

ABCLAW 9y ago
The Supreme Court did cite the test governing the provision of interlocutory orders. That test is well known law from RJR MacDonald. There's a bit of a blurb regarding the case in my comment below, but you can look up the case and you'll find the full test and commentary. The government isn't proposing anyone do anything; A private party is, and asked for the court's help. The second private party is very clearly acting illegally and appropriating the value of the first party's brand. They've gone as far as to flee the province to try and dodge the court order which attempts to halt them from doing so. The first party asked google to take down their listings because those listings are the channel through which the illegal brand appropriation is occurring. The court agreed. Google said they didn't want to comply with the order partially on the basis that there might be some compliance contradictions. The court said "Sure, but you didn't plead any evidence that that's the case. We judge what's in front of us. If you're serious, we have a mechanism to deal with it. Make an application like anyone else who wants to amend an interlocutory order. Bring us evidence there's another law which prohibits you from taking the listing down, and we'll amend the order". The reason why courts only judge what's in front of them is so that the other side can actually argue against their points. If Google said "Law X from Country Y prevents us from doing that", the Respondent could reply "The only thing Law X from Country Y does is regulate how sweet twinkies can be, please stop lying to the court". The alternative, forcing the Respondent to prove that there is NO contradiction in every other country, is impossible. Google's response, however, requires 1 list distribution email in legal saying "Anyone have a problem in their country? Let me know". This is the "balance of convenience" portion of the RJR MacDonald test.
- kodablah 9y ago
  The unfortunate part of that test appears to be that the private party can request the moon. A reasonable person might expect a court that is required "judge what's in front of them" to not apply their judgement to foreign jurisdictions. I wonder how this would be applied to a physical storefront from a global retailer that happened to have presence in Canada...I suppose they'd be forced to remove physical non-Canadian products from even their non-Canadian stores. Because hey, retailer, show us where it's illegal for you to remove this product. You can't? Then apply our ruling worldwide. Is my analogy off? Or is it, as I suspect, the fact that the decision is easier to accept digitally part of the reason why it's being levied? The RJR MacDonald test appears incredibly subjective. This test, if in fact it is narrowly construed as show-us-where-you-can't, is a scary defendant test to counter decisions. Or if the test is being vaguely construed for these means, it is equally scary.

qb45 9y ago

> crystal clear trademark violations Nope, it's about alleged trade secrets, not trademarks. http://www.courts.gov.bc.ca/jdb-txt/SC/14/10/2014BCSC1063.htm http://www.courts.gov.bc.ca/jdb-txt/SC/14/10/2014BCSC1063.ht... > The current international trademark framework means that the majority of nations in the world would actually require compliance with this order Given the above, I'm not sure if it's still true. And even if it was, I fail to see why Canadian court should be allowed to effectively make this decision for others. Have all countries in the world obliged to recognize Canadian censorship orders yet? > I am confident in stating that the freedom of speech concerns arising from this case are not as dire as portrayed. Meh, it's not exactly reassuring if you say that this ruling doesn't matter because it's business as usual.

ABCLAW 9y ago
Unfortunately, the evidence you've brought to the table actually doesn't agree with your position, but you aren't trained enough to understand it yet. Read the link you cited, specifically paragraph 5. Look up passing-off as a tort, then look up Subsection 7 c) of the Canadian Trademarks Act. There are often trade-secret dimensions in situations where a supplier is committing trademark infringement, but this is a clear situation where there's PLENTY of trademark infringement going on.
- qb45 9y ago
  Sorry, I must have missed this part. FWIW, they don't seems to do it anymore.