IT’S BEEN ALMOST 20 YEARS SINCE JOHN
Perry Barlow, the essayist, Grateful
Dead lyricist and Electronic Frontier
Foundation founder, declared that governments have no sovereignty in cyberspace. “Your legal concepts of property,
expression, identity, movement and
context do not apply to us,” he wrote
in his “Declaration of Independence of
Cyberspace,” which went viral when
published in 1996. “They are all based
on matter, and there is no matter here.”
A recent ruling by the Court of
Appeal for British Columbia af;rmed
a lower court decision ordering Google
Inc. to block certain websites from
its search engine—not just in British
Columbia but worldwide.
The ruling, the first of its kind in
Canada, raises questions about the
power that courts can wield over the
Internet—a question that is also being
raised in other parts of the world. It
challenges notions of free speech, extraterritoriality and an open Internet. And
it raises the possibility that intellectual
property owners will ;le more lawsuits
in British Columbia as it develops a reputation as a venue willing to exercise its
authority beyond its provincial borders.
“This touches off a troubling juris-dictional tangle,” says David Post, a fellow at the Institute for Information Law
and Policy at New York Law School and
a former professor at Temple University’s Beasley School of Law. “Different
countries have different laws, and issuing global injunctions does not make for
a sensible international order.”
THE SEEMINGLY UNCONVENTIONAL
ruling stems from a conventional intel-
lectual property dispute between rival
companies. Equustek Solutions Inc.,
a network equipment manufacturer,
alleged that Datalink Technologies Inc.
was taking Equustek hardware, repack-
aging it and then distributing it as its
own brand. It sued Datalink in Van-
couver for trademark infringement and
unlawful appropriation of trade secrets.
The court agreed with Equustek and
ordered Vancouver-based Datalink to
stop selling the infringing products on
its websites. It also ordered Datalink to
publish a notice on its sites redirecting
customers to Equustek.
Datalink ignored the injunctions. In
fact, it stopped responding to the court
and moved its operations. It ran websites from unknown locations and continued to sell the infringing products
under different names. It relied on Web
search engines to direct customers to
its sites. For Equustek, stopping Datalink with court orders became a futile
attempt at whack-a-mole.
But Equustek wasn’t giving up. If
customers were ;nding Datalink sites
via a search engine, it reasoned, why
not go after the world’s biggest search
engine? Equustek asked the court to
issue an injunction prohibiting Google
from delivering search results pointing
to Datalink’s websites across the globe.
Google was not a party to the liti-
gation and had not been charged with
any wrongdoing in the case. But once
dragged into the fight, it voluntarily
delisted 345 specific URLs from the
google.ca domain that directed users
to the infringing products. That search
engine is used by approximately 95 per-
cent of Canada’s residents.
But the court stated that that wasn’t
enough. It granted the requested injunction, ordering Google to delist the sites
worldwide. This meant that the offending sites would have to be removed
not only from google.ca, but also from
google.co.uk, google.fr, google.co.jp
and hundreds of other country-speci;c
search engine domains owned by the
company. And it would, of course, also
have to be delisted from google.com.
Not surprisingly, Google appealed.
It stated that the injunction went
beyond the jurisdiction of the court. It
also argued that it improperly operated
against an innocent nonparty to the litigation and had an impermissible extraterritorial reach.
But in June, the Court of Appeal for
British Columbia affirmed the lower
court’s decision—a loss that observers say has repercussions not only for
Google but also for the entire Internet.
“It’s a slippery slope,” says Post.
“Are more countries going to feel
; BY LISA SHUCHMAN ; A court in British Columbia has ordered Google to remove links to a site—globally.
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