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Music, book and film industries could benefit big from Supreme Court’s Google ruling

An employee walks in a hallway at Google Canada's engineering headquarters in Waterloo, Ontario, Canada, on Friday, Jan. 22, 2016.

Cole Burston/Bloomberg

While a number of media organizations decried the Supreme Court ruling this week ordering Google to de-list a company's websites as a restriction of free speech, many in the music, book and film industries are celebrating the result – which hands them another weapon to fight piracy.

Entertainment companies depend on popular search engines to direct potential consumers to legitimate sources of their content. For all the effort these industries have put into fighting copyright violations the past two decades, pirated songs, books and movies are often still a Web search away.

Because Google operates globally, the Wednesday ruling from Canada's top court is expected to make it easier for copyright owners to force search engines to drop whole infringing websites from public view worldwide with a single country's court order. The decision lessens a complicated burden, entertainment-industry legal experts say, giving them an alternative to seeking court orders in many individual countries or issuing take-down notices for a website's thousands of individual pages.

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Intervening groups, including Human Rights Watch and the Electronic Frontier Foundation, however, are concerned that other countries may interpret the ruling as an opportunity to limit speech online across the world. And for all it might help in the war on illegal file hosts, the decision could have unintended consequences for the very copyright holders and entertainment companies cheering it on.

The case itself saw British Columbia technology company Equustek Solutions Inc. clash with Google over listing the pages of a website of a firm it accused of stealing trade secrets. The court ruled, 7-2, that the search engine helped enable harm against Equustek, upholding a worldwide injunction forcing it to de-list the infringing website.

Copyright owners and their representatives regularly issue notices to Google and other sites to take down links to illegally posted content, including through the rules of the U.S. Digital Millennium Copyright Act (DMCA). That's often to the tune of hundreds of millions of notices a year, said Jo Oliver, general counsel for the International Federation of the Phonographic Industry (IFPI), the recorded music industry's global lobbying group.

The process is, naturally, tedious. "Rather than being required to send sometimes multiple thousands of notices with regard to the same site, the value of this decision is it means the entire site is removed, once and for all," Ms. Oliver said. Still, she said that it is only one more tool in a vast anti-piracy toolkit, and it was "quite unusual" for a court to suggest an order extends beyond its country's borders.

"It provides a practical solution to go to one jurisdiction, obtain an order against [a copyright violator] globally, and then have that order enforced by a search engine," said Barry Sookman, a senior partner with McCarthy Tétrault who represented a number of music- and book-industry intervenors in the case, including Music Canada, the IFPI and the Canadian Publishers' Council. "In that respect, it creates the possibility, in appropriate cases, for global orders."

Google publicly keeps track of the number take-down requests it receives and processes; since March 2011, the company says it has removed nearly 2.5-billion URLs from search. (The company said of Wednesday's ruling that it was "carefully reviewing the court's findings and evaluating our next steps.")

The European Union has similar legislation allowing rights holders to apply for injunctions against intermediaries such as search engines that are used by third parties to infringe copyright. Both Mr. Sookman and Ms. Oliver said the Canadian ruling could influence common law in countries such as Hong Kong, Australia, New Zealand and Singapore, too.

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"It gives audiences more access to great content," said Erin Finlay, chief legal officer of the Canadian Media Producers Association. "The more people that access legitimate content, the more money that flows into the hands of people who deserve to be paid, and the more great content they can produce."

She suggested that the ruling's lesson is less about expanding the power of court orders than getting more stakeholders to play fair. "Everyone has a role to play in contributing what they can to curb the illegal activity," Ms. Finlay said.

The digital civil-liberties non-profit, Electronic Frontier Foundation, was far less enthused, noting that the decision could set a precedent for any court worldwide to "edit the entire Internet." Cory Doctorow, a copyright activist, special adviser to the foundation, and author who's dealt with the dark side of DMCA take-downs, said that entertainment executives celebrating the ruling "are being especially dangerously shortsighted."

Lawmakers in countries with long copyright durations, such as Jamaica, could use the principles of the Supreme Court of Canada decision to wrest books out of public domain in other countries, Mr. Doctorow said in an e-mail. Or states with more rigorous censorship laws could impose them on countries with different values.

"Today, you can pay to watch a video of Mel Brooks's The Producers online," he said. "But that movie has to be heavily redacted in Germany thanks to that country's ban on depictions of swastikas, even in parodies. Should German lawmakers get to decide if Canadians are allowed to laugh at Nazis?"

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About the Author

Josh O’Kane is a reporter with The Globe and Mail's Report on Business. Since joining the paper in 2011, he has told stories from New Brunswick to Nairobi. More

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