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The Equustek Case: Just Couldn’t Land The Big Fish

Reading Time 2 minute read

Canadian technology company Equustek was facing massive piracy of its flagship product by a an ex-distributor that stole its trade secrets, copied its technology, and passed off its products for those of Equustek. The pirate sold the infringing products exclusively online. Successive court orders trying to shut down the offensive websites were ignored: the pirate would just re-appear on a different website.

Finally Equustek convinced the BC courts, and then the Supreme Court of Canada, to order search engine giant Google to de-index all websites connected to the defendants. Google had been prepared to de-index specific web pages and potentially all .ca domains, but objected to the worldwide reach of the court orders, which extended to any and all web sites operated by the defendants.

In a sweeping judgment handed down in 2017, the Supreme Court of Canada brushed aside Google's objections to the long reach of the Canadian court orders, as well as the concerns of the many intervenors in the case who argued that worldwide shut-down orders had massive freedom of speech implications, saying:  « The Internet has no borders – its natural habitat is global. »

A strongly-worded dissent by two of the nine Canadian Supreme Court judges argued that the order sought by the plaintiff was too broad and in the end would not be effective. They turned out to be right…

The Supreme Court's decision made headlines worldwide.  Anti-piracy activists lauded the decision as being an adequate and necessary means to fight online piracy.  But their cries of victory were short-lived.

In a matter of weeks Google applied to its home court, the District Court for the Northern District of California, seeking preliminary injunctive relief against the Canadian court order on the grounds that the Canadian courts disregarded Section 230 of the US Communication Decency Act of 1996. Google's application was unopposed by Equustek and unsurprisingly, the California court agreed with Google: it declared that the Canadian courts' order cannot be enforced in the USA, and issued a preliminary injunction prohibiting that enforcement against Google.  Google is now in the process of seeking to vary the Canadian order against it, based on the California judgment.

This case shows that state and national courts are grappling with the problem of online piracy. For now, tenacious plaintiffs will have to go beyond their borders to seek redress. But who knows.  Future plaintiffs and their lawyers may yet have other tricks up their sleeves.


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