Post on 29-Aug-2019
transcript
SCC Court file no. 36602
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE BRITISH COLUMBIA COURT OF APPEAL)
BETWEEN:
GOOGLE INC.
Appellant
- and -
EQUUSTEK SOLUTIONS INC., ROBERT ANGUS, and CLARMA ENTERPRISES INC.,
Respondents
- and -
MORGAN JACK, ANDREW CRAWFORD, DATALINK TECHNOLOGY GATEWAYS
INC., DATALINK 5, DATALINK 6, JOHN DOE, DATALINK TECHNOLOGIES
GATEWAYS LLC, AND LEE INGRAM
Non-Parties to the Appeal
- and -
ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO,
CANADIAN CIVIL LIBERTIES ASSOCIATION, OPENMEDIA ENGAGEMENT
NETWORK, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, AMERICAN
SOCIETY OF NEWS EDITORS, ASSOCIATION OF ALTERNATIVE NEWSMEDIA,
CENTER FOR INVESTIGATIVE REPORTING, DOW JONES & COMPANY, INC., FIRST
AMENDMENT COALITION, FIRST LOOK MEDIA WORKS INC., NEW ENGLAND FIRST
AMENDMENT COALITION, NEWSPAPER ASSOCIATION OF AMERICA, AOL INC.,
CALIFORNIA NEWSPAPER PUBLISHERS ASSOCIATION, ASSOCIATED PRESS,
INVESTIGATIVE REPORTING WORKSHOP AT AMERICAN UNIVERSITY, ONLINE
NEWS ASSOCIATION AND THE SOCIETY OF PROFESSIONAL JOURNALISTS (JOINT
AS THE MEDIA COALITION), HUMAN RIGHTS WATCH, ARTICLE 19, OPEN NET
(KOREA), SOFTWARE FREEDOM LAW CENTRE AND THE CENTER FOR
TECHNOLOGY AND SOCIETY (JOINT), THE WIKIMEDIA FOUNDATION, BRITISH
COLUMBIA CIVIL LIBERTIES ASSOCIATION, ELECTRONIC FRONTIER
FOUNDATION, INTERNATIONAL FEDERATION OF THE PHONOGRAPHIC
INDUSTRY, MUSIC CANADA, CANADIAN PUBLISHERS’ COUNCIL, ASSOCIATION
OF CANADIAN PUBLISHERS, INTERNATIONAL CONFEDERATION OF SOCIETIES OF
AUTHORS AND COMPOSERS, INTERNATIONAL CONFEDERATION OF MUSIC
PUBLISHERS AND THE WORLDWIDE INDEPENDENT NETWORK (JOINT),
INTERNATIONAL FEDERATION OF FILM PRODUCERS ASSOCIATIONS
Interveners
FACTUM OF INTERVENER
THE ELECTRONIC FRONTIER FOUNDATION
(Pursuant to Rule 42 of the Rules of the Supreme Court of Canada)
SCC Court file no. 36602
IN THE SUPREME COURT OF CANADA(ON APPEAL FROM THE BRITISH COLUMBIA COURT OF APPEAL)
BETWEEN:GOOGLE INC.
Appellant- and -
EQUUSTEK SOLUTIONS INC., ROBERT ANGUS, and CLARMA ENTERPRISES INC.,Respondents
- and -MORGAN JACK, ANDREW CRAWFORD, DATALINK TECHNOLOGY GATEWAYS
INC., DATALINK 5, DATALINK 6, JOHN DOE, DATALINK TECHNOLOGIESGATEWAYS LLC, AND LEE INGRAM
Non-Parties to the Appeal- and -
ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO,CANADIAN CIVIL LIBERTIES ASSOCIATION, OPENMEDIA ENGAGEMENT
NETWORK, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, AMERICANSOCIETY OF NEWS EDITORS, ASSOCIATION OF ALTERNATIVE NEWSMEDIA,
CENTER FOR INVESTIGATIVE REPORTING, DOW JONES & COMPANY, INC., FIRSTAMENDMENT COALITION, FIRST LOOK MEDIA WORKS INC., NEW ENGLAND FIRST
AMENDMENT COALITION, NEWSPAPER ASSOCIATION OF AMERICA, AOL INC.,CALIFORNIA NEWSPAPER PUBLISHERS ASSOCIATION, ASSOCIATED PRESS,
INVESTIGATIVE REPORTING WORKSHOP AT AMERICAN UNIVERSITY, ONLINENEWS ASSOCIATION AND THE SOCIETY OF PROFESSIONAL JOURNALISTS (JOINT
AS THE MEDIA COALITION), HUMAN RIGHTS WATCH, ARTICLE 19, OPEN NET(KOREA), SOFTWARE FREEDOM LAW CENTRE AND THE CENTER FOR
TECHNOLOGY AND SOCIETY (JOINT), THE WIKIMEDIA FOUNDATION, BRITISHCOLUMBIA CIVIL LIBERTIES ASSOCIATION, ELECTRONIC FRONTIER
FOUNDATION, INTERNATIONAL FEDERATION OF THE PHONOGRAPHICINDUSTRY, MUSIC CANADA, CANADIAN PUBLISHERS’ COUNCIL, ASSOCIATION
OF CANADIAN PUBLISHERS, INTERNATIONAL CONFEDERATION OF SOCIETIES OFAUTHORS AND COMPOSERS, INTERNATIONAL CONFEDERATION OF MUSIC
PUBLISHERS AND THE WORLDWIDE INDEPENDENT NETWORK (JOINT),INTERNATIONAL FEDERATION OF FILM PRODUCERS ASSOCIATIONS
Interveners
FACTUM OF INTERVENERTHE ELECTRONIC FRONTIER FOUNDATION
(Pursuant to Rule 42 of the Rules ofthe Supreme Court ofCanada)
FASKEN MARTINEAU DUMOULIN LLP 2900 - 550 Burrard Street
Vancouver, B.C.
V6C 0A3
Fax: 604-631-3232
David Wotherspoon
Daniel A. Byma Tel.: 604-631-3131
Email: dwotherspoon@fasken.com
Counsel for the Intervener
The Electronic Frontier Foundation
FASKEN MARTINEAU DUMOULIN
LLP 1300 - 55 Metcalfe Street
Ottawa, ON
K1P 6L5
Fax: 613-230-6423
Yael Wexler Tel.: 613-236-3882
Fax: 613-230-6423
Email: ywexler@fasken.com
Ottawa Agent for the Intervener
The Electronic Frontier Foundation
FASKEN MARTINEAU DUMOULIN LLP2900 - 550 Burrard StreetVancouver, B.C.V6C 0A3Fax: 604-631-3232
David WotherspoonDaniel A. BymaTe1.: 604-631-3131Email: dwotherspoon@fasken.com
Counsel for the IntervenerThe Electronic Frontier Foundation
FASKEN MARTINEAU DUMOULINLLP1300 - 55 Metcalfe StreetOttawa, ONK1P 6L5Fax: 613-230-6423
Yael WexlerTe1.: 613-236-3882Fax: 6 1 3-230-6423Email: ywexler@fasken.com
Ottawa Agent for the IntervenerThe Electronic Frontier Foundation
ORIGIN
AL TO:
REGISTRAR
Supreme Court of Canada
301 Wellington Street
Ottawa, Ontario
K1A 0J1
COPIES
TO:
LENCZNER SLACHT ROYCE
SMITH GRIFFIN LLP 2600 -130 Adelaide Street West
Toronto, ON
M5H 3P5
Marguerite F. Ethier
William C. McDowell Tel.: 416-865-9500
Fax: 416-865-9010
Email: methier@litigate.com
Counsel for the Appellant, Google Inc.
GOWLING WLG (CANADA)
INC. 2600 -160 Elgin Street
Ottawa, ON
K2C 3T2
Jeff Beedell Tel.: 613-786-0171
Fax: 613-788-3587
Email: jeff.beedell@gowlingwlg.com
Ottawa Agent for the Appellant,
Google Inc.
AND TO: ROBERT FLEMING LAWYERS 915 - 925 West Georgia Street
Vancouver, BC
V6C 3L2
Robert S. Fleming
John Zeljkovich Tel.: 604-682-1659
Email: robbie@fleminglawyer.com
Lawyers for the Respondents
Equustek Solutions Inc., Robert Angus
and Clarma Enterprises Inc.
SUPREME ADVOCACY LLP 100 - 340 Gilmour Street
Ottawa, ON
K2P 0R3
Marie-France Major Tel.: 613-695-8855
Fax: 613-695-8580
Email:
mfmajor@supremeadvocacy.ca
Ottawa Agent for the Respondents
Equustek Solutions Inc., Robert
Angus and Clarma Enterprises Inc.
AND TO: ATTORNEY GENERAL OF CANADA
2127 - 284 Wellington Street
Ottawa, ON
K1A 0H8
Jeffrey G. Johnston
Tel.: 613-941-3528
Fax.: 613-957-8412
E-mail: jeffrey.johnston@justice.gc.ca
ATTORNEY GENERAL OF
CANADA
50 O'Connor Street, Suite 500, Room
557
Ottawa, ON
K1A 0H8
Christopher M. Rupar
Tel.: 613-670-6290
Fax.: 613-954-1920
E-mail:
ORIGIN REGISTRARAL TO: Supreme Court of Canada
301 Wellington StreetOttawa, OntarioKIA OJ 1
COPIES LENCZNER SLACHT ROYCE GOWLING WLG (CANADA)TO: SMITH GRIFFIN LLP INC.
2600 -130 Adelaide Street West 2600 -160 Elgin StreetToronto, ON Ottawa, ONM5H 3P5 K2C 3T2
Marguerite F. Ethier Jeff BeedellWilliam C. McDowell Te1.: 613-786-0171Tel.: 416-865-9500 Fax: 613-788-3587Fax: 416-865-9010 Email: jeff.beedell@gowlingwlg.comEmail: methier@litigate.com
Ottawa Agent for the Appellant,Counsel for the Appellant, Google Inc. Google Inc.
AND TO: ROBERT FLEMING LAWYERS SUPREME ADVOCACY LLP915 - 925 West Georgia Street 100 - 340 Gilmour StreetVancouver, BC Ottawa, ONV6C 3L2 K2P 0R3
Robert S. Fleming Marie-France MajorJohn Zeljkovich Tel.: 613-695-8855Tel.: 604-682-1659 Fax: 613-695-8580Email: robbie@fleminglawyer.com Email:
mfmajor@supremeadVocacy.caLawyers for the RespondentsEquustek Solutions Inc., Robert Angus Ottawa Agent for the Respondentsand Clarrna Enterprises Inc. Equustek Solutions Inc., Robert
Angus and Clanna Enterprises Inc.
AND TO: ATTORNEY GENERAL OF CANADA ATTORNEY GENERAL OF2127 - 284 Wellington Street CANADAOttawa, ON 50 O'Connor Street, Suite 500, RoomKIA 0H8 557
Ottawa, ONK1A 0H8
Jeffrey G. Johnston Christopher M. RuparTel.: 613-941-3528 Te1.: 613-670-6290Fax.: 613-957-8412 Fax.: 613-954-1920E-mail: jeffrey.johnston@justice.gc.ca E-mail:
Lawyer for the Intervener, Attorney
General of Canada
christopher.rupar@justice.gc.ca
Ottawa Agent for the Intervener,
Attorney General of Canada
AND TO: ATTORNEY GENERAL OF
ONTARIO
720 Bay Street, 10th Floor
Toronto, ON
M7A 2S9
John Corelli
Tel: (416) 326-4600
Fax: (416) 326-4656
E-mail: john.corelli@ontario.ca
Lawyer for the Intervener, Attorney
General of Ontario
BURKE ROBERTSON
441 MacLaren Street
Suite 200
Ottawa, ON
K2P 2H3
Robert E. Houston, Q.C.
Tel: (613) 236-9665
Fax: (613) 235-4430
E-mail:
rhouston@burkerobertson.com
Ottawa Agent for the Intervener,
Attorney General of Ontario
AND TO BLAKE, CASSELS & GRAYDON
LLP
595 Burrard Street, P.O. Box 49314
Suite 2600, Three Bentall Centre
Vancouver, BC
V7X 1L3
Joe McArthur
Mathew P. Good
Tom Posyniak
Tel: (604) 631-3300
Fax: (604) 631-3309
E-mail: joe.mcarthur@blakes.com
Lawyers for the Interveners, Canadian
Civil Liberties Association
BLAKE, CASSELS & GRAYDON
LLP 1750 - 340 Albert Street
Constitution Square, Tower 3
Ottawa, ON
K1R 7Y6
Nancy K. Brooks
Tel: (613) 788-2218
Fax: (613) 788-2247
E-mail: nancy.brooks@blakes.com
Ottawa Agent for the Intervener,
Canadian Civil Liberties Association
AND TO NANDA & COMPANY
3400 Manulife Place
10180- 101 Street N.W.
Edmonton, Alberta
T5J 4K1
AND TO:
AND TO
AND TO
Lawyer for theGeneral of Canada
ATTORNEY GENERAL OFONTARIO720 Bay Street, 10th FloorToronto, ONM7A 2S9
John CorelliTel: (416) 326-4600Fax: (416) 326-4656E-mail: john.corelli@ontario.ca
Lawyer for the Intervener, AttorneyGeneral of Ontario
BLAKE, CASSELS & GRAYDONLLP595 Burrard Street, P.O. Box 49314Suite 2600, Three Bentall CentreVancouver, BCV7X 1L3
Joe McArthurMathew P. GoodTom PosyniakTel: (604) 631-3300Fax: (604) 631-3309E-mail: joe.mcarthur@blakes.com
Lawyers for the Interveners, CanadianCivil Liberties Association
NANDA & COMPANY3400 Manulife Place10180- 101 Street N.W.Edmonton, AlbertaT5J 4K1
Intervener, Attorney christopher.rupar@justice.gc.ca
Ottawa Agent for the Intervener,Attorney General of Canada
BURKE ROBERTSON441 MacLaren StreetSuite 200Ottawa, ONK2P 2H3
Robert E. Houston, Q.C.Tel: (613) 236-9665Fax: (613)235-4430E-mail:rhouston@burkerobertson.com
Ottawa Agent for the Intervener,Attorney General of Ontario
BLAKE, CASSELS & GRAYDONLLP1750 - 340 Albert StreetConstitution Square, Tower 3Ottawa, ONKIR 7Y6
Nancy K. BrooksTel: (613)788-2218Fax: (613) 788-2247E-mail: nancy.brooks@blakes.com
Ottawa Agent for the Intervener,Canadian Civil Liberties Association
Avnish Nanda
Tel: (780) 801-5324
Fax: (587) 318-1391
E-mail: avnish@nandalaw.ca
Lawyer for the Intervener, OpenMedia
Engagement Network
AND TO BLAKE, CASSELS & GRAYDON
LLP
199 Bay Street, Suite 4000
Commerce Court West
Toronto, ON
M5L 1A9
Iris Fisher
Helen Richards
Tel: (416) 863-2408
Fax: (416) 863-2653
E-mail: iris.fisher@blakes.com
Lawyers for the Interveners, Reporters
Committee for Freedom of the Press,
American Society of News Editors,
Association of Alternative Newsmedia,
The Center for Investigative Reporting,
Dow Jones & Company, Inc., First
Amendment Coalition, First Look Media
Works, Inc., New England First
Amendment Coalition, Newspaper
Association of America, AOL Inc.,
California Newspaper Publishers
Association, The Associated Press, The
Investigative Reporting Workshop at
American University, Online News
Association and Society of Professional
Journalists
BLAKE, CASSELS & GRAYDON
LLP 1750 - 340 Albert Street
Constitution Square, Tower 3
Ottawa, ON
K1R 7Y6
Nancy K. Brooks
Tel: (613) 788-2218
Fax: (613) 788-2247
E-mail: nancy.brooks@blakes.com
Ottawa Agent for the Intervener,
Reporters Committee for Freedom of
the Press, American Society of News
Editors, Association of Alternative
Newsmedia, The Center for
Investigative Reporting, Dow Jones
& Company, Inc., First Amendment
Coalition, First Look Media Works,
Inc., New England First Amendment
Coalition, Newspaper Association of
America, AOL Inc., California
Newspaper Publishers Association,
The Associated Press, The
Investigative Reporting Workshop at
American University, Online News
Association and Society of
Professional Journalists
AND TO BLAKE, CASSELS & GRAYDON
LLP
199 Bay Street, Suite 4000
Commerce Court West
Toronto, ON
M5L 1A9
BLAKE, CASSELS & GRAYDON
LLP 1750 - 340 Albert Street
Constitution Square, Tower 3
Ottawa, ON
K1R 7Y6
AND TO
AND TO
Avnish NandaTel: (780) 801-5324Fax: (587)318-1391E-mail: avnish@nandalaw.ca
Lawyer for the Intervener, OpenMediaEngagement Network
BLAKE, CASSELS & GRAYDONLLP199 Bay Street, Suite 4000Commerce Court WestToronto, ONM5L 1A9
Iris FisherHelen RichardsTel: (416) 863-2408Fax: (416) 863-2653E-mail: iris.fisher@blakes.com
Lawyers for the Interveners, ReportersCommittee for Freedom of the Press,American Society ofNews Editors,Association ofAlternative Newsmedia,The Center for Investigative Reporting,Dow Jones & Company, Inc., FirstAmendment Coalition, First Look MediaWorks, Inc., New England FirstAmendment Coalition, NewspaperAssociation of America, AOL Inc.,California Newspaper PublishersAssociation, The Associated Press, TheInvestigative Reporting Workshop atAmerican University, Online NewsAssociation and Society of ProfessionalJournalists
BLAKE, CASSELS & GRAYDONLLP199 Bay Street, Suite 4000Commerce Court WestToronto, ONM5L 1A9
BLAKE, CASSELS & GRAYDONLLP1750 - 340 Albert StreetConstitution Square, Tower 3Ottawa, ONKIR 7Y6
Nancy K. BrooksTel: (613) 788-2218Fax: (613) 788-2247E-mail: nancy.brooks@blakes.com
Ottawa Agent for the Intervener,Reporters Committee for Freedom ofthe Press, American Society ofNewsEditors, Association ofAlternativeNewsmedia, The Center forInvestigative Reporting, Dow Jones& Company, Inc., First AmendmentCoalition, First Look Media Works,Inc., New England First AmendmentCoalition, Newspaper Association ofAmerica, AOL Inc., CaliforniaNewspaper Publishers Association,The Associated Press, TheInvestigative Reporting Workshop atAmerican University, Online NewsAssociation and Society ofProfessional Journalists
BLAKE, CASSELS & GRAYDONLLP1750 - 340 Albert StreetConstitution Square, Tower 3Ottawa, ONKIR 7Y6
Paul B. Schabas
Kaley Pulfer
Tel: (416) 863-4274
Fax: (416) 863-2653
E-mail: paul.schabas@blakes.com
Lawyers for the Interveners, Human
Rights Watch, ARTICLE 19, Open Net
(Korea), Software Freedom Law Centre,
Center for Technology and Society
Nancy K. Brooks
Tel: (613) 788-2218
Fax: (613) 788-2247
E-mail: nancy.brooks@blakes.com
Ottawa Agent for the Interveners,
Human Rights Watch, ARTICLE 19,
Open Net (Korea), Software Freedom
Law Centre, Center for Technology
and Society
AND TO MCINNES COOPER
1300 - 1969 Upper Water Street
Purdy's Wharf Tower II
Halifax, Nova Scotia
B3J 2V1
David T.S. Fraser
Telephone: (902) 444-8535
FAX: (902) 425-6350
E-mail: david.fraser@mcinnescooper.com
Lawyers for the Intervener, Wikimedia
Foundation
GOWLING WLG (CANADA)
INC.
160 Elgin Street, Suite 2600
Ottawa, Ontario
K1P 1C3
Jeffrey W. Beedell
Telephone: (613) 786-0171
FAX: (613) 788-3587
E-mail:
jeff.beedell@gowlingwlg.com
Ottawa Agent for the Intervener,
Wikimedia Foundation
AND TO STOCKWOODS LLP
TD North Tower, suite 4130
77 King Street West, P.O. Box 140
Toronto, ON
M5K 1H1
Justin Safayeni
Carlo Di Carlo
Tel: (416) 593-7200
Fax: (416) 593-9345
E-mail: justins@stockwoods.ca
Lawyers for the Intervener, British
Columbia Civil Liberties Association
FASKEN MARTINEAU
DUMOULIN LLP
55 Metcalfe Street, Suite 1300
Ottawa, ON
K1P 6L5
Yael Wexler
Tel: (613) 696-6860
Fax: (613) 230-6423
E-mail: ywexler@fasken.com
Ottawa Agent for the Intervener,
British Columbia Civil Liberties
Association
AND TO
AND TO
Paul B. SchabasKaley PulferTel: (416) 863-4274Fax: (416) 863-2653E-mail: paul.schabas@blakes.com
Lawyers for the Interveners, HumanRights Watch, ARTICLE 19, Open Net(Korea), Software Freedom Law Centre,Center for Technology and Society
MCINNES COOPER1300 - 1969 Upper Water StreetPurdy's Wharf Tower IIHalifax, Nova ScotiaB3] 2V1
David T.S. FraserTelephone: (902) 444-8535FAX: (902) 425-6350E-mail: david.fraser@mcinnescooper.com
Lawyers for the Intervener, WikimediaFoundation
STOCKWOODS LLPTD North Tower, suite 413077 King Street West, P.O. Box 140Toronto, ONM5K 1H1
Justin SafayeniCarlo Di CarloTel: (416) 593-7200Fax: (416) 593-9345E-mail: justins@stockwoods.ca
Lawyers for the Intervener, BritishColumbia Civil Liberties Association
Nancy K. BrooksTel: (613) 788-2218Fax: (613) 788-2247E-mail: nancy.brooks@blakes.com
Ottawa Agent for the Interveners,Human Rights Watch, ARTICLE 19,Open Net (Korea), Software FreedomLaw Centre, Center for Technologyand Society
GOWLING WLG (CANADA)INC.160 Elgin Street, Suite 2600Ottawa, OntarioK1P 1C3
Jeffrey W. BeedellTelephone: (613) 786-0171FAX: (613)788-3587E-mail:jeff.beedell@gowlingwlg.com
Ottawa Agent for the Intervener,Wikimedia Foundation
FASKEN MARTINEAUDUMOULIN LLP55 Metcalfe Street, Suite 1300Ottawa, ONK1P 6L5
Yael WexlerTel: (613) 696-6860Fax: (613)230-6423E-mail: ywexler@fasken.com
Ottawa Agent for the Intervener,British Columbia Civil LibertiesAssociation
AND TO MCCARTHY TÉTRAULT LLP
P.O. Box 48, Suite 5300, T-D Bank
Tower
Toronto-Dominion Centre
Toronto, ON
M5K 1E6
Barry B. Sookman
Daniel G.C. Glover
Miranda Lam
Tel: (416) 601-7949
Fax: (416) 868-0673
Lawyers for the Interveners, International
Federation of the Phonographic Industry,
Music Canada, Canadian Publishers’
Council, Association of Canadian
Publishers, International Confederation of
Societies of Authors and Composers,
International Confederation of Music
Publishers, Worldwide Independent
Network
BURKE ROBERTSON
441 MacLaren Street
Suite 200
Ottawa, ON
K2P 2H3
Robert E. Houston, Q.C.
Tel: (613) 236-9665
Fax: (613) 235-4430
E-mail:
rhouston@burkerobertson.com
Ottawa Agent for the Intervener,
International Federation of the
Phonographic Industry, Music
Canada, Canadian Publishers’
Council, Association of Canadian
Publishers, International
Confederation of Societies of Authors
and Composers, International
Confederation of Music Publishers,
Worldwide Independent Network
AND TO MACKENZIE BARRISTERS
120 Adelaide Street West
Suite 2100
Toronto, ON
M5H 1T1
Gavin MacKenzie
Brooke MacKenzie
Tel: (416) 304-9293
Fax: (416) 304-9296
E-mail: gavin@mackenziebarristers.com
Lawyers for the Intervener, International
Federation of Film Producers
Associations
POWER LAW
130 Albert Street
Suite 1103
Ottawa, ON
K1P 5G4
Mark C. Power
Tel: (613) 702-5561
Fax: (613) 702-5561
E-mail: mpower@juristespower.ca
Ottawa Agent for the Intervener,
International Federation of Film
Producers Associations
AND TO
AND TO
MCCARTHY TETRAULT LLPP.O. Box 48, Suite 5300, T-D BankTowerToronto-Dominion CentreToronto, ONM5K 1E6
Barry B. SookmanDaniel G.C. GloverMiranda LamTel: (416) 601-7949Fax: (416) 868-0673
Lawyers for the Interveners, InternationalFederation of the Phonographic Industry,Music Canada, Canadian Publishers’Council, Association of CanadianPublishers, International Confederation ofSocieties ofAuthors and Composers,International Confederation ofMusicPublishers, Worldwide IndependentNetwork
MACKENZIE BARRISTERS120 Adelaide Street WestSuite 2 1 00Toronto, ONMSH 1T1
Gavin MacKenzieBrooke MacKenzieTel: (416) 304-9293Fax: (416) 304-9296E-mail: gavin@mackenziebarristers.com
Lawyers for the Intervener, InternationalFederation of Film ProducersAssociations
BURKE ROBERTSON441 MacLaren StreetSuite 200Ottawa, ONK2P 2H3
Robert E. Houston, Q.C.Tel: (613) 236-9665Fax: (613)235-4430E-mail:rhouston@burkerobertson.com
Ottawa Agent for the Intervener,International Federation of thePhonographic Industry, MusicCanada, Canadian Publishers’Council, Association of CanadianPublishers, InternationalConfederation of Societies ofAuthorsand Composers, InternationalConfederation ofMusic Publishers,Worldwide Independent Network
POWER LAW130 Albert StreetSuite 1 103Ottawa, ONKIP 5G4
Mark C. PowerTel: (613)702-5561Fax: (613)702-5561E-mail: mpower@juristespower.ca
Ottawa Agent for the Intervener,International Federation ofFilmProducers Associations
i
Table of Contents
PAGE
PART I - OVERVIEW AND FACTS 1
PART II - STATEMENT OF POSITION 1
PART III - ARGUMENT 1
The Preliminary Injunction Test in the U.S. 2
Free Expression in Preliminary Injunctions 3
U.S. Courts Demand A High Bar Where Access to Information
is Restricted
6
Statutory Protections of Internet Intermediaries in the U.S. 6
Consideration of U.S. Law 7
Proposed Injunction Test 8
PART IV - SUBMISSIONS CONCERNING COSTS 10
PART V - ORDER SOUGHT AND PERMISSION TO PRESENT
ORAL ARGUMENT
10
PART VI - AUTHORITIES CITED 11
PART VII - STATUTES AND REGULATIONS 13
Table of Contents
PAGEPART I - OVERVIEW AND FACTS
PART II - STATEMENT OF POSITION
PART III - ARGUMENT
The Preliminary Injunction Test in the U.S. 2
Free Expression in Preliminary Injunctions 3
U.S. Courts Demand A High Bar Where Access to Information 6is RestrictedStatutory Protections of Internet Intermediaries in the U.S. 6
Consideration of U.S. Law 7
Proposed Injunction Test 8
PART IV - SUBMISSIONS CONCERNING COSTS 10
PART V - ORDER SOUGHT AND PERMISSION TO PRESENT 10ORAL ARGUMENTPART VI - AUTHORITIES CITED 11
PART VII - STATUTES AND REGULATIONS
1
PART I: OVERVIEW AND FACTS
1. EFF seeks to assist the court by proposing a principled test, with specific requirements, as
guidance for Canadian courts when considering the granting of mandatory worldwide injunctions
affecting non-parties in foreign jurisdictions, particularly where such orders restrain free
expression on the Internet. The proposed EFF test, aided by reference to US law, will provide
consideration of foreign legal systems and citizens.
2. Notably for the for the following analysis, the courts below issued and upheld the
injunction without analysis of the specific content of the impugned websites (BCSC at [137] and
BCCA at [110]) and without a substantive finding of trade secret violations on the merits. The
EFF test, set out in detail below, expands on the test proposed by Google at paragraph 111 of its
factum, by adding a threshold consideration of the law in affected foreign jurisdictions, the
strength of the case on the merits (vs. on default), among other factors.
PART II: STATEMENT OF POSITION
3. In this appeal, the Electronic Frontier Foundation (“EFF”) submits that the
extraterritorial effects of mandatory worldwide injunctions that restrain free expression on the
Internet are anathema to judicial comity. Pursuant to its mandate to promote and protect civil
rights in the digital world, EFF seeks to ensure that free expression, which necessarily includes
the right to receive speech on the Internet, is appropriately considered and balanced against other
competing private rights when Canadian courts consider granting such injunctions. In particular,
EFF seeks to encourage proper consideration of the principles of comity, with specific reference
to the American approach of balancing competing interests in protecting trade secrets, free
expression, and Internet users’ rights.
PART III: ARGUMENT
4. In this case, the trial court issued an injunction requiring de-indexing of certain websites
because of who operated them (BCSC at [137]), finding it was more convenient for Google to
de-index entire sites, as de-indexing specific URLs or webpages was insufficient because it
would result in an “endless game of whack-a-mole” (BCSC at [72]). In the court’s conclusion the
plaintiffs’ commercial interests and convenience weighed more heavily than any public interest.
PART I: OVERVIEW AND FACTS
1. EFF seeks to assist the court by proposing a principled test, with specific requirements, as
guidance for Canadian courts when considering the granting of mandatory worldwide injunctions
affecting non-parties in foreign jurisdictions, particularly where such orders restrain free
expression on the Internet. The proposed EFF test, aided by reference to US law, will provide
consideration of foreign legal systems and citizens.
2. Notably for the for the following analysis, the courts below issued and upheld the
injunction without analysis of the specific content of the impugned websites (BCSC at [137] and
BCCA at [110]) and without a substantive finding of trade secret violations on the merits. The
EFF test, set out in detail below, expands on the test proposed by Google at paragraph 111 of its
factum, by adding a threshold consideration of the law in affected foreign jurisdictions, the
strength of the case on the merits (vs. on default), among other factors.
PART II: STATEMENT OF POSITION
3. In this appeal, the Electronic Frontier Foundation (“EFF”) submits that the
extraterritorial effects of mandatory worldwide injunctions that restrain free expression on the
Internet are anathema to judicial comity. Pursuant to its mandate to promote and protect civil
rights in the digital world, EFF seeks to ensure that free expression, which necessarily includes
the right to receive speech on the Internet, is appropriately considered and balanced against other
competing private rights when Canadian courts consider granting such injunctions. In particular,
EFF seeks to encourage proper consideration of the principles of comity, with specific reference
to the American approach of balancing competing interests in protecting trade secrets, free
expression, and Internet users’ rights.
PART III: ARGUMENT
4. In this case, the trial court issued an injunction requiring de-indexing of certain websites
because of who operated them (BCSC at [137]), finding it was more convenient for Google to
de-index entire sites, as de-indexing specific URLs or webpages was insufficient because it
would result in an “endless game ofwhack-a-mole” (BCSC at [72]). In the court’s conclusion the
plaintiffs’ commercial interests and convenience weighed more heavily than any public interest.
- 2 -
5. EFF submits that the approach under U.S. law would be significantly different than the
approach below. These submissions will first address the test for preliminary injunctions
generally in the U.S., focusing on the heightened requirements for mandatory injunctions. The
submissions will then address preliminary injunctions that have the potential to restrain lawful
speech, and the heavy burden that must be met in order for such an injunction to issue. The
submissions will then review statutory protections that immunize Internet intermediaries, such as
search engines, from being subject to injunctions restraining free expression, and other
considerations of U.S. law that would counsel against issuing such an order. Finally, EFF
proposes a test to guide Canadian courts that takes into consideration the varying laws of foreign
jurisdictions, the merits of the underlying claim, harm to the plaintiff, the availability of
alternative measures, the breadth of the injunction, the efficacy of the injunction balanced against
possible deleterious effects on the enjoined party, the public and expressly on free expression.
The Preliminary Injunction Test in the U.S.
6. In the United States, an interlocutory injunction is known as a preliminary injunction, and
is issued to “protect [a] plaintiff from irreparable injury and to preserve the court’s power to
render a meaningful decision after a trial on the merits.”1 An applicant must establish that: (1) it
is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of
preliminary relief; (3) the balance of equities tips in its favour; and (4) an injunction is in the
public interest.2
7. While similar to the RJR MacDonald test for an interlocutory injunction, the U.S. test for
issuing a preliminary injunction has two notable differences. First, the U.S. test requires the
plaintiff to demonstrate it is likely to succeed on the merits of its claim. EFF submits that this
aspect of the test often requires a court to look beyond a default order to assess the strengths of a
particular claim. While a default judgment may be sufficient to ground an order affecting the
rights of the defaulting party, there is good reason to pause before relying on that same default to
take away the rights of non-parties who were unable to advance a defence on the merits.
1 Wright & Miller, Purpose and Scope of Preliminary Injunctions, 11A Fed. Prac. & Proc. Civ. § 2947 (3d ed.)
2 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also eBay Inc. v. MercExchange, LLC, 547
U.S. 388, 394 (2006)
_ 2 _5. EFF submits that the approach under U.S. law would be significantly different than the
approach below. These submissions will first address the test for preliminary injunctions
generally in the U.S., focusing on the heightened requirements for mandatory injunctions. The
submissions will then address preliminary injunctions that have the potential to restrain lawful
speech, and the heavy burden that must be met in order for such an injunction to issue. The
submissions will then review statutory protections that immunize Internet intermediaries, such as
search engines, from being subject to injunctions restraining free expression, and other
considerations of U.S. law that would counsel against issuing such an order. Finally, EFF
proposes a test to guide Canadian courts that takes into consideration the varying laws of foreign
jurisdictions, the merits of the underlying claim, harm to the plaintiff, the availability of
alternative measures, the breadth of the injunction, the efficacy of the injunction balanced against
possible deleterious effects on the enjoined party, the public and expressly on free expression.
The Preliminary Iniunction Test in the U.S.
6. In the United States, an interlocutory injunction is known as a preliminary injunction, and
is issued to “protect [a] plaintiff from irreparable injury and to preserve the court’s power to
render a meaningful decision after a trial on the merits.”1 An applicant must establish that: (1) it
is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of
preliminary relief; (3) the balance of equities tips in its favour; and (4) an injunction is in the
public interest.2
7. While similar to the RJR MacDonald test for an interlocutory injunction, the U.S. test for
issuing a preliminary injunction has two notable differences. First, the U.S. test requires the
plaintiff to demonstrate it is likely to succeed on the merits of its claim. EFF submits that this
aspect of the test often requires a court to look beyond a default order to assess the strengths of a
particular claim. While a default judgment may be sufficient to ground an order affecting the
rights of the defaulting party, there is good reason to pause before relying on that same default to
take away the rights of non-parties who were unable to advance a defence on the merits.
1 Wright & Miller, Purpose and Scope ofPreliminary Injunctions, 11A Fed. Prac. & Proc. CiV. § 2947 (3d ed.)2 Winter v. Natural Res. Def Council, Inc., 555 U.S. 7, 20 (2008); see also eBay Inc. v. MercExchange, LLC, 547
U.S. 388, 394 (2006)
- 3 -
8. Second, the U.S. test for a preliminary injunction requires an explicit consideration of the
public interest.3 The public’s interest may be separate and distinct from that of the parties
4,
allowing the court to examine the impact of such an order on non-parties. When an injunction
has potential implications for expression, the public interest consideration necessarily includes an
assessment of any potential impact on free expression and access to information as a factor
separate and apart from balancing the equities between the parties.5
9. More broadly, U.S. law also requires that equitable relief “be tailored to remedy the
specific harm alleged.”6 In other words, U.S. courts hesitate to make orders with wide-reaching
effects that go beyond the narrow purpose of curtailing a specified harm. The standard for
mandatory injunctions - injunctions that alter rather than maintain the status quo, such as by
removing information from public view - is particularly high. In the Ninth Circuit, the home of
Silicon Valley and a hub of online commerce, the courts have emphasized that mandatory
injunctions are particularly disfavoured.7
10. There is a good policy reason for this caution. Where an injunction alters rather than
preserves the status quo, the risk of harm to the parties and the public interest is high. The public
may be deprived of valuable information and/or services, or an innovative business may be
forced to close its doors forever, even though its business could ultimately prove lawful.8
Free Expression in Preliminary Injunctions
11. The First Amendment to the U.S. Constitution broadly protects the free expression of
individuals and recognizes that the public’s right to “receive information and ideas, regardless of
3 Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)
4 Salinger v. Colting, 607 F.3d 68, 83 (2d Cir. 2010) (citing Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475
U.S. 1, 8 (1986)) 5 In addition to the “public interest” in the content of the speech itself, courts have emphasized that free expression
concerns must be taken into account in weighing the “irreparable harm” and “balance of equities” factors. “[T]he
loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable
injury.” Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 828 (9th Cir. 2013) (quoting Elrod v. Burns, 427 U.S. 347,
373 (1976)) 6 Park Village Apt. Tenants v. Mortimer Howard Trust, 636 F.3d 1150, 1160 (9th Cir. 2011) (citation and quotation
omitted) 7 Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994); see also Cachchillo v. Insmed, Inc., 638 F.3d 401,
406 (2d Cir. 2011); Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir. 1994) 8 Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) (reversing trial court grant of a preliminary
injunction on Google from creating and displaying thumbnails of infringing copyrighted images); Author’s Guild
v. Google, Inc., 954 F. Supp. 2d 282 (S.D.N.Y. 2013) (granting summary judgment to Google that its mass
digitization of copyrighted literary works is fair use)
_ 3 _8. Second, the U.S. test for a preliminary injunction requires an explicit consideration of the
public interest.3 The public’s interest may be separate and distinct from that of the parties4,
allowing the court to examine the impact of such an order on non-parties. When an injunction
has potential implications for expression, the public interest consideration necessarily includes an
assessment of any potential impact on free expression and access to information as a factor
separate and apart from balancing the equities between the parties.5
9. More broadly, U.S. law also requires that equitable relief “be tailored to remedy the
specific harm alleged.”6 In other words, U.S. courts hesitate to make orders with wide-reaching
effects that go beyond the narrow purpose of curtailing a specified harm. The standard for
mandatory injunctions - injunctions that alter rather than maintain the status quo, such as by
removing information from public View - is particularly high. In the Ninth Circuit, the home of
Silicon Valley and a hub of online commerce, the courts have emphasized that mandatory
injunctions are particularly disfavoured.7
10. There is a good policy reason for this caution. Where an injunction alters rather than
preserves the status quo, the risk of harm to the parties and the public interest is high. The public
may be deprived of valuable information and/or services, or an innovative business may be
forced to close its doors forever, even though its business could ultimately prove lawful.8
Free Expression in Preliminary Injunctions
11. The First Amendment to the U.S. Constitution broadly protects the free expression of
individuals and recognizes that the public’s right to “receive information and ideas, regardless of
3 Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)4 Salinger v. Colting, 607 F.3d 68, 83 (2d Cir. 2010) (citing Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475
U.S. 1, 8 (1986))5 In addition to the “public interest” in the content of the speech itself, courts have emphasized that free expression
concerns must be taken into account in weighing the “irreparable harm” and “balance of equities” factors. “[T]heloss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparableinjury.” Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 828 (9th Cir. 2013) (quoting Elrod v. Burns, 427 U.S. 347,373 (1976))
6 Park Village Apt. Tenants v. Mortimer Howard Trust, 636 F.3d 1150, 1160 (9th Cir. 2011) (citation and quotationomitted)
7 Stanley v. Univ. ofS. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994); see also Cachchillo v. Insmed, Inc., 638 F.3d 401,406 (2d Cir. 2011); Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir. 1994)
8 Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) (reversing trial court grant of a preliminaryinjunction on Google from creating and displaying thumbnails of infringing copyrighted images); Author ’s Guildv. Google, Inc., 954 F. Supp. 2d 282 (S.D.N.Y. 2013) (granting summary judgment to Google that its massdigitization of copyrighted literary works is fair use)
- 4 -
their social worth […] is fundamental to [America’s] free society.”9 “[T]he right to receive ideas
is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press,
and political freedom.”10
This fundamental right in the U.S. to receive information applies fully
to receiving content over the Internet,11
including Internet search results.12
12. Where a party seeks an injunction to restrain expression, the scales are tipped sharply in
favour of judicial restraint,13
even where the impugned expression may be unlawful. The U.S.
Supreme Court has observed that where liability lies on the line between unlawful and protected
expression, an “[e]rror in marking that line exacts an extraordinary cost.” If the line is drawn
incorrectly so as to encompass legitimate expression, fundamental rights are abridged:
It is through speech that our convictions and beliefs are influenced, expressed, and
tested. It is through speech that we bring those beliefs to bear on Government and
on society. It is through speech that our personalities are formed and expressed.
The citizen is entitled to seek out or reject certain ideas or influences without
Government interference or control.14
13. Thus, where there is at least some risk that constitutionally protected expression will be
enjoined, “only a particularly strong showing of likely success, and of harm to the defendant as
well, could suffice” to justify an injunction.15
In other words, any injunction requiring a search
engine to limit online search results implicates the public interest in free expression and the
standard to restrain such speech is quite stringent.
14. Preliminary injunctions that impede expression, whether by preventing publication or
requiring de-publication, are considered “prior restraints” under U.S. law.16
Prior restraints are
9 Stanley v. Georgia, 394 U.S. 557, 564 (1969) (internal citations omitted)
10Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1027 n.5 (9th Cir. 1998) (citation and quotation
omitted) 11
See Reno v. ACLU, 521 U.S. 844, 870-71 (1997) 12
See, e.g., Langdon v. Google, Inc., 474 F. Supp. 2d 622, 629-30 (D. Del. 2007); Zhang v. Baidu.com, Inc., 10 F.
Supp. 3d 433, 436-440 (S.D.N.Y. 2014); Eugene Volokh & Donald M. Falk, First Amendment Protection for
Search Engine Search Results, 8 J.L. Econ. & Pol’y 883 (2012) 13
Ashcroft v. ACLU, 542 U.S. 656, 670-71 (2004) 14
United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 817 (2000) (“Playboy”) 15
Overstreet v. United Bhd. of Carpenters & Joiners of Am. Local Union No. 1506, 409 F.3d 1199, 1208 n.13 (9th
Cir. 2005) 16
Alexander v. United States, 509 U.S. 544, 550 (1993) (staying a state court’s preliminary injunction because it was
a prior restraint). See also Org. for a Better Austin v. Keefe, 402 U.S. 415, 418 (1971) (invalidating temporary
injunction against distribution of pamphlets as a prior restraint).
-4-their social worth [...] is fundamental to [America’s] free society.”9 “[T]he right to receive ideas
is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press,9910and political freedom. This fundamental right in the U.S. to receive information applies fully
to receiving content over the Intemet,“ including Internet search results.”
12. Where a party seeks an injunction to restrain expression, the scales are tipped sharply in
favour of judicial restraint,” even where the impugned expression may be unlawful. The U.S.
Supreme Court has observed that where liability lies on the line between unlawful and protected
expression, an “[e]rror in marking that line exacts an extraordinary cost.” If the line is drawn
incorrectly so as to encompass legitimate expression, fundamental rights are abridged:
It is through speech that our convictions and beliefs are influenced, expressed, andtested. It is through speech that we bring those beliefs to bear on Government andon society. It is through speech that our personalities are formed and expressed.The citizen is entitled to seek out or reject certain ideas or influences withoutGovernment interference or control. 14
13. Thus, where there is at least some risk that constitutionally protected expression will be
enjoined, “only a particularly strong showing of likely success, and of harm to the defendant as
well, could suffice” to justify an injunction.” In other words, any injunction requiring a search
engine to limit online search results implicates the public interest in free expression and the
standard to restrain such speech is quite stringent.
14. Preliminary injunctions that impede expression, whether by preventing publication or
requiring de-publication, are considered “prior restraints” under U.S. law.1 Prior restraints are
9 Stanley v. Georgia, 394 U.S. 557, 564 (1969) (internal citations omitted)l0Monteir0 v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1027 n.5 (9th Cir. 1998) (citation and quotation
omitted)“ See Reno v. ACLU, 521 U.S. 844, 870-71 (1997)12 See, e.g., Langdon v. Google, Inc., 474 F. Supp. 2d 622, 629-30 (D. Del. 2007); Zhang v. Baidu.com, Inc., 10 F.
Supp. 3d 433, 436-440 (S.D.N.Y. 2014); Eugene Volokh & Donald M. Falk, First Amendment Protection forSearch Engine Search Results, 8 J.L. Econ. & Pol’y 883 (2012)
13 Ashcroft v. ACLU, 542 U.S. 656, 670-71 (2004)‘4 United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 817 (2000) (“Playboy”)15 Overstreet v. United Bhd. ofCarpenters & Joiners ofAm. Local Union No. 1506, 409 F.3d 1199, 1208 n.13 (9th
Cir. 2005)16 Alexander v. United States, 509 U.S. 544, 550 (1993) (staying a state court’s preliminary injunction because it was
a prior restraint). See also Org. for a Better Austin v. Keefe, 402 U.S. 415, 418 (1971) (invalidating temporaryinjunction against distribution of pamphlets as a prior restraint).
- 5 -
the most serious and least tolerable infringement on First Amendment rights.17
As stated by the
U.S. Supreme Court, “[n]o one can read the history of the adoption of the First Amendment
without being convinced beyond any doubt that it was injunctions [infringing on freedom of the
press] that Madison and his collaborators intended to outlaw in this Nation for all time.”18
Injunctions such as the one at issue here are considered prior restraints, even when they seek to
stop the disclosure of alleged trade secrets.19
15. In the U.S., any system of prior restraints bears “a heavy presumption against its
constitutional validity.”20
Although it does not impose a categorical bar, the First Amendment
renders prior restraints exceedingly rare, issued only when they are necessary to further an
interest of the highest magnitude,21
as long ago recognized by Justice Blackmun:
Although the prohibition against prior restraints is by no means absolute, the
gagging of publication has been considered acceptable only in ‘exceptional
cases.’ Even where questions of allegedly urgent national security, or competing
constitutional interests, are concerned, we have imposed this most extraordinary
remedy only where the evil that would result from the [speech] is both great and
certain and cannot be militated by less intrusive measures.22
16. A plaintiff seeking such a restraint must meet an extremely high burden: (1) the harm
will definitely occur; (2) the harm will be irreparable; (3) no alternative exists for preventing the
harm; and (4) the prior restraint will in fact prevent the harm.23
Moreover, U.S. laws against prior
restraint apply even if enjoined expression may be entirely unlawful.24
Where it may implicate
speech, even a post-trial injunction is often an impermissible prior restraint.25
17
Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976) (“Nebraska Press”). Even for temporary orders, when
“a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a
separate and cognizable infringement of the First Amendment.” Nebraska Press Ass’n. v. Stuart, 423 U.S. 1327,
1329 (1975) (Blackmun, Circuit Justice, in chambers). 18
New York Times Co. v. United States, 403 U.S. 713, 719 (1971) (Black, J. concurring) 19
CBS, Inc. v. Davis, 510 U.S. 1315, 1318 (1994) (“Davis”) 20
Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) 21
See Nebraska Press, supra at 562 22
Davis, supra, at 1317 (Blackmun, J., in chambers) (citations and quotations omitted). See also Near v. Minnesota,
283 U.S. 697, 706 (1931) (invalidating statute allowing courts to enjoin publication of future issues of newspaper
based on previous editions found to be “‘chiefly devoted to malicious, scandalous and defamatory articles’”); cf.
Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 225 (6th Cir. 1996) (“The private litigants’ interest in
protecting their … commercial self-interest simply does not qualify as grounds for imposing a prior restraint.”). 23
See Davis, supra, at 1317. 24
Id. (citations and quotations omitted). See also Near supra, at 706 (1931) (invalidating statute allowing courts to
enjoin publication of future issues of newspaper based on previous editions found to be “‘chiefly devoted to
malicious, scandalous and defamatory articles’”) 25
See Erwin Chemerinsky, Injunctions in Defamation Cases, 57 Syracuse L. Rev. 157, 165 (2007)
_ 5 _the most serious and least tolerable infringement on First Amendment rights.” As stated by the
U.S. Supreme Court, “[n]o one can read the history of the adoption of the First Amendment
without being convinced beyond any doubt that it was injunctions [infringing on freedom of the
press] that Madison and his collaborators intended to outlaw in this Nation for all time.”18
Injunctions such as the one at issue here are considered prior restraints, even when they seek to
stop the disclosure of alleged trade secrets.”
15. In the U.S., any system of prior restraints bears “a heavy presumption against its
constitutional validity.”2° Although it does not impose a categorical bar, the First Amendment
renders prior restraints exceedingly rare, issued only when they are necessary to further an
interest of the highest magnitude,” as long ago recognized by Justice Blackmun:
Although the prohibition against prior restraints is by no means absolute, thegagging of publication has been considered acceptable only in ‘exceptionalcases.’ Even where questions of allegedly urgent national security, or competingconstitutional interests, are concerned, we have imposed this most extraordinaryremedy only where the evil that would result from the [speech] is both great andcertain and cannot be militated by less intrusive measures.
16. A plaintiff seeking such a restraint must meet an extremely high burden: (1) the harm
will definitely occur; (2) the harm will be irreparable; (3) no alternative exists for preventing the
harm; and (4) the prior restraint will in fact prevent the harm.” Moreover, U.S. laws against prior
restraint apply even if enjoined expression may be entirely unlawful.24 Where it may implicate
speech, even a post-trial injunction 1S often an impermissible prior restraint. 5
17 Nebraska Press Ass ’n v. Stuart, 427 U.S. 539, 559 (1976) (“Nebraska Press”). Even for temporary orders, when“a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute aseparate and cognizable infringement of the First Amendment.” Nebraska Press Ass ’n. v. Stuart, 423 U.S. 1327,1329 (1975) (Blackmun, Circuit Justice, in chambers).
18 New York Times Co. v. United States, 403 U.S. 713, 719 (1971) (Black, J. concurring)19 CBS, Inc. v. Davis, 510 U.S. 1315, 1318 (1994) (“Davis”)20 Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963)21 See Nebraska Press, supra at 56222 Davis, supra, at 1317 (Blackmun, J., in chambers) (citations and quotations omitted). See also Near v. Minnesota,
283 U.S. 697, 706 (1931) (invalidating statute allowing courts to enjoin publication of future issues of newspaperbased on previous editions found to be “‘chiefly devoted to malicious, scandalous and defamatory articles”’); cfProcter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 225 (6th Cir. 1996) (“The private litigants’ interest inprotecting their
23 See Davis, supra, at 1317.24 Id. (citations and quotations omitted). See also Near supra, at 706 (1931) (invalidating statute allowing courts to
enjoin publication of future issues of newspaper based on previous editions found to be ‘“chiefly devoted tomalicious, scandalous and defamatory articles”’)
25 See Erwin Chemerinsky, Injunctions in Defamation Cases, 57 Syracuse L. Rev. 157, 165 (2007)
- 6 -
U.S. Courts Demand A High Bar Where Access to Information is Restricted
17. Independent of considering the public’s interest in the preliminary injunction analysis, a
U.S. court would also consider whether the order issued here interferes with Internet users’ free
expression rights to receive information. The right to receive information includes those who
seek to receive information for solely private use26
and those who gather information to later
publicly disseminate it to broader audiences.27
18. The court would first ask whether the restriction prohibits access to particular topics or
ideas to determine whether the injunction would create a content-based restriction on speech.
Under U.S. law, a restriction is content based if it regulates “the topic discussed or the idea or
message expressed.”28
Such restrictions are subject to strict scrutiny by courts, meaning they are
permissible only where the restriction is narrowly tailored to meet a compelling interest.29
Statutory Protections of Internet Intermediaries in the U.S.
19. Further, U.S. law immunizes Internet intermediaries from legal action for providing a
platform for content provided by their users. Specifically, 47 U.S.C. § 230, a provision of the
Communication Decency Act of 1996 (“Section 230”) provides that “[n]o provider or user of an
interactive computer service shall be treated as the publisher or speaker of any information
provided by another information content provider.”30
Under Section 230, an “information
content provider”31
may “be subject to state law liability in relation to content that it develops,
but an ‘interactive computer service’ is immune from suit for state law claims in relation to
merely hosting such content on a website.” 32
26
Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748, 757 (1976) (protecting the right to advertise,
based in part on the consumer’s “reciprocal right to receive the advertising” in order to make informed
decisions); Stanley, 394 U.S. at 564 (protecting the right to possess obscene materials at home, because “the right
to receive information and ideas, regardless of their social worth . . . is fundamental to our free society”) 27
See, e.g., Richmond Newspapers v. Virginia, 448 U.S. 555, 576 (1980) (plurality) (protecting the right to gather
information in courtrooms, because “free speech carries with it some freedom to listen”); Bd. of Educ. v. Pico,
457 U.S. 853, 867 (1982) (plurality) (protecting the right to gather information in libraries, because “the right to
receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press,
and political freedom”) 28
Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015) 29
Playboy, supra at 813 30
47 U.S.C. § 230(c)(1) 31
An “information content provider” is “any person or entity that is responsible, in whole or in part, for the creation
or development of information provided through the Internet or any other interactive computer service.” 47
U.S.C. § 230(f)(3) 32
J.S. v. Village Voice Media Holdings LLC, 184 Wash.2d 95, 101 (2015) (quoting Carafano v. Metrosplash.com,
Inc., 339 F.3d 1119, 1123 (9th Cir. 2003)) (footnotes omitted)
_ 5 _US. Courts Demand A High Bar Where Access to Information is Restricted
17. Independent of considering the public’s interest in the preliminary injunction analysis, a
U.S. court would also consider whether the order issued here interferes with Internet users’ free
expression rights to receive information. The right to receive information includes those who
seek to receive information for solely private use26 and those who gather information to later
publicly disseminate it to broader audiences.”
18. The court would first ask whether the restriction prohibits access to particular topics or
ideas to determine whether the injunction would create a content-based restriction on speech.
Under U.S. law, a restriction is content based if it regulates “the topic discussed or the idea or
message expressed.”28 Such restrictions are subject to strict scrutiny by courts, meaning they are
permissible only where the restriction is narrowly tailored to meet a compelling interest.”
Statutory Protections of Internet Intermediaries in the U.S.
19. Further, U.S. law immunizes Internet intermediaries from legal action for providing a
platform for content provided by their users. Specifically, 47 U.S.C. § 230, a provision of the
Communication Decency Act of 1996 (“Section 230”) provides that “[n]o provider or user of an
interactive computer service shall be treated as the publisher or speaker of any information9230provided by another information content provider. Under Section 230, an “information
content provider”3 1 may “be subject to state law liability in relation to content that it develops,
but an ‘interactive computer service’ is immune from suit for state law claims in relation to
merely hosting such content on a website.” 32
26 Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748, 757 (1976) (protecting the right to advertise,based in part on the consumer’s “reciprocal right to receive the advertising” in order to make informeddecisions); Stanley, 394 U.S. at 564 (protecting the right to possess obscene materials at home, because “the rightto receive information and ideas, regardless of their social worth . . . is fundamental to our free society”)
27 See, e.g., Richmond Newspapers v. Virginia, 448 U.S. 555, 576 (1980) (plurality) (protecting the right to gatherinformation in courtrooms, because “free speech carries with it some freedom to listen”); Bd. ofEduc. v. Pico,457 U.S. 853, 867 (1982) (plurality) (protecting the right to gather information in libraries, because “the right toreceive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press,and political freedom”)
23 Reed v. Town ofGilbert, 135 s. Ct. 2218, 2227 (2015)29 Playboy, supra at 8133° 47 U.S.C. § 230(c)(1)31 An “information content provider” is “any person or entity that is responsible, in whole or in part, for the creation
or development of information provided through the Internet or any other interactive computer service.” 47U.S.C. § 230(f)(3)
32 J.S. v. Village Voice Media Holdings LLC, 184 Wash.2d 95, 101 (2015) (quoting Carafano v. Metrosplash.com,Inc., 339 F.3d 1119, 1123 (9th Cir. 2003)) (footnotes omitted)
- 7 -
20. In passing Section 230 in 1996, the U.S. Congress explicitly stated that its goals were,
among others, “to promote the continued development of the Internet and other interactive
computer services” and “to preserve the vibrant and competitive free market” online.33
Accordingly, Section 230 was intended to “recognize the special role of intermediaries, who
serve as a vehicle for the speech of others.”34
Congress thus made the policy choice that fostering
an unrestrained, robust communication forum on the Internet was more important than deterring
potentially harmful online speech by imposing liability on intermediaries “for other parties’
potentially injurious messages.”35
21. Importantly, Section 230 provides immunity from suit, not just liability. “No cause of
action may be brought and no liability may be imposed under any State or local law that is
inconsistent with this section.”36
While Section 230 provides for limited exceptions for
“intellectual property” claims,37
the exceptions would not apply to the trade secret claims at issue
in this appeal. The intellectual property exception is limited to well-established federal
intellectual property claims, such as copyright and patents,38
and does not apply to trade
secrets.39
Consideration of U.S. Law
22. EFF submits there are notable differences between how U.S. and Canadian courts would
approach granting a mandatory injunction restraining free expression on the Internet. First, the
trial court considered the public’s interest only to extend to “the ab[ility] to find and buy the
defendants’ products as easily” (BCSC at [155]). The courts did not consider the public’s
interest in the free expression, a consideration required by U.S. law. As noted above, under U.S.
law, when an injunction has potential implications for speech, the public interest consideration
necessarily includes an assessment of any potential impact on free speech and access to
information as a factor separate and apart from balancing the equities between the parties. More
33
See 47 U.S.C. § 230(b)(1)–(2) 34
Anupam Chander & Uyên P. Lê, Free Speech, 100 Iowa L. Rev. 501, 514 (2015) 35
Zeran v. America Online, Inc., 129 F.3d 327, 330–31 (4th Cir. 2008) 36
47 U.S.C. § 230(e)(3) 37
47 U.S.C. § 230(e)(2) 38
Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1119 (9th Cir. 2007) 39
Stevo Design, Inc. v. SBR Mktg., 919 F. Supp. 2d 1112, 1125 (D. Nev. 2013) (Section 230 gives website immunity
from state law trade secrets claims)
_ 7 _20. In passing Section 230 in 1996, the U.S. Congress explicitly stated that its goals were,
among others, “to promote the continued development of the Internet and other interactive
computer services” and “to preserve the vibrant and competitive free market” online.33
Accordingly, Section 230 was intended to “recognize the special role of intermediaries, who
serve as a vehicle for the speech of others.”34 Congress thus made the policy choice that fostering
an unrestrained, robust communication forum on the Internet was more important than deterring
potentially harmful online speech by imposing liability on intermediaries “for other parties’. . . . 3
potentially injurious messages.” 5
21. Importantly, Section 230 provides immunity from suit, not just liability. “No cause of
action may be brought and no liability may be imposed under any State or local law that is
inconsistent with this section.”36 While Section 230 provides for limited exceptions for
“intellectual property” claims,37 the exceptions would not apply to the trade secret claims at issue
in this appeal. The intellectual property exception is limited to well-established federal
intellectual property claims, such as copyright and patents,38 and does not apply to trade
secrets.”
Consideration of U.S. Law
22. EFF submits there are notable differences between how U.S. and Canadian courts would
approach granting a mandatory injunction restraining free expression on the Internet. First, the
trial court considered the public’s interest only to extend to “the ab[ility] to find and buy the
defendants’ products as easily” (BCSC at [155]). The courts did not consider the public’s
interest in the free expression, a consideration required by U.S. law. As noted above, under U.S.
law, when an injunction has potential implications for speech, the public interest consideration
necessarily includes an assessment of any potential impact on free speech and access to
information as a factor separate and apart from balancing the equities between the parties. More
33 See 47 U.S.C. § 230(b)(1)—(2)34 Anupam Chander & Uyén P. Lé, Free Speech, 100 Iowa L. Rev. 501, 514 (2015)35 Zeran v. America Online, Inc., 129 F.3d 327, 330—3l (4th Cir. 2008)36 47 U.S.C. § 230(e)(3)37 47 U.S.C. § 230(e)(2)33 Perfect 10, Inc. v. CCBillLLC, 488 F.3d 1102, 1119 (9111 Cir. 2007)39 Stevo Design, Inc. v. SBR Mktg., 919 F. Supp. 2d 1112, 1125 (D. Nev. 2013) (Section 230 gives website immunity
from state law trade secrets claims)
- 8 -
importantly, where a party seeks to remove speech from the public eye, there is a presumption of
against its constitutional validity and the scales tip in favour of judicial restraint.
23. Second, the courts below relied on the defendants’ default on judgment to determine that
the plaintiff met its requirement of demonstrating a strong prima facie case (BCCA at [101]; and
BCSC at [151]). However, the courts below did not make any substantive findings on the merits
of the plaintiff’s claims. Under U.S. law, facts found in reaching a judgment - default or
otherwise - generally cannot bind a non-party unless that non-party is given an opportunity to
litigate and make submissions on any fact relevant to the relief sought against the non-party.40
24. Third, the injunction as entered by the court is not narrowly tailored to affect only the
allegedly unlawful disclosure of trade secrets. The trial court has attempted to restrain the receipt
of all information from a particular speaker at all websites, based on findings regarding certain
information contained at certain URLs (BCSC at [137]). Thus, the order may well require
Google to block lawful as well as unlawful content. Under U.S. law, “[b]road prophylactic rules
in the area of free expression are suspect. Precision of regulation must be the touchstone.”41
Proposed Injunction Test
25. EFF submits that a mandatory injunction against innocent non-parties to restrain
expression with extraterritorial effect should be an order of last resort and issued only in the
rarest of circumstances. It is not sufficient that mere convenience tips in favour of protecting a
plaintiff’s private interests when weighed against the impact on a non-party restrained by the
order. Such a narrow focus ignores the impact on the rights and interests of other non-parties,
including foreign states and individuals. Rather, an absence of consideration of broader policy
considerations, foreign interests, and comity, leads to the supercilious export of Canadian laws
and societal values on non-parties otherwise beyond the reach of Canadian courts.
26. Accordingly, the threshold question in the analysis of whether Canadian courts should
issue orders effectively restraining the rights of non-parties to receive expression, should be
whether an order with extraterritorial effect may offend another state’s core values or run
contrary to the law of any jurisdiction whose citizens the order might affect. Justice would
40
See Zenith Radio Corp. v. Hazeltine Research Inc., 395 U.S. 100, 110-112 (1969); see also Parklane Hosiery Co.
v. Shore, 439 U.S. 322, 327 n.7 (1979) (“It is a violation of due process for a judgment to be binding on a litigant
who was not a party or a privy and therefore has never has an opportunity to be heard”). 41
NAACP v. Button, 371 U.S. 415, 438 (1963) (citations omitted)
_ 8 _importantly, where a party seeks to remove speech from the public eye, there is a presumption of
against its constitutional validity and the scales tip in favour ofjudicial restraint.
23. Second, the courts below relied on the defendants’ default on judgment to determine that
the plaintiff met its requirement of demonstrating a strong primafacie case (BCCA at [I01]; and
BCSC at [151]). However, the courts below did not make any substantive findings on the merits
of the plaintiff’ s claims. Under U.S. law, facts found in reaching a judgment - default or
otherwise - generally cannot bind a non-party unless that non-party is given an opportunity to
litigate and make submissions on any fact relevant to the relief sought against the non-party.4°
24. Third, the injunction as entered by the court is not narrowly tailored to affect only the
allegedly unlawful disclosure of trade secrets. The trial court has attempted to restrain the receipt
of all information from a particular speaker at all websites, based on findings regarding certain
information contained at certain URLs (BCSC at [l37]). Thus, the order may well require
Google to block lawful as well as unlawful content. Under U.S. law, “[b]road prophylactic rules
in the area of free expression are suspect. Precision of regulation must be the touchstone.”41
Proposed Iniunction Test
25. EFF submits that a mandatory injunction against innocent non-parties to restrain
expression with extraterritorial effect should be an order of last resort and issued only in the
rarest of circumstances. It is not sufficient that mere convenience tips in favour of protecting a
plaintiff’ s private interests when weighed against the impact on a non-party restrained by the
order. Such a narrow focus ignores the impact on the rights and interests of other non-parties,
including foreign states and individuals. Rather, an absence of consideration of broader policy
considerations, foreign interests, and comity, leads to the supercilious export of Canadian laws
and societal values on non-parties otherwise beyond the reach of Canadian courts.
26. Accordingly, the threshold question in the analysis of whether Canadian courts should
issue orders effectively restraining the rights of non-parties to receive expression, should be
whether an order with extraterritorial effect may offend another state’s core values or run
contrary to the law of any jurisdiction whose citizens the order might affect. Justice would
40 See Zenith Radio Corp. v. Hazeltine Research Inc., 395 U.S. 100, 110-112 (1969); see also Parklane Hosiery Co.v. Shore, 439 U.S. 322, 327 n.7 (1979) (“It is a violation of due process for a judgment to be binding on a litigantwho was not a party or a privy and therefore has never has an opportunity to be heard”).
‘“ NAACP v. Button, 371 U.S. 415, 438 (1963) (citations omitted)
- 9 -
require the onus and cost of proving lack of extraterritorial effects to be borne by the plaintiff
seeking to promote its interests, not the innocent non-party seeking to maintain the status-quo in
the public’s interest.
27. Where there is a realistic possibility that an order with extraterritorial effects may offend
another state’s core values, or run afoul of its law, the order should not be made.42
In the instance
of an order that seeks to restrict free expression on the Internet in foreign jurisdictions, such a
threshold is exceedingly high and unlikely to be met. For example, in this case it appears that
such an order runs contrary to U.S. policy and law, restricting the rights of Internet users to
receive speech that may yet be shown to be lawful.
28. Where a plaintiff demonstrates that an injunction with extraterritorial effects does not
offend another state’s core values or law, then the plaintiff should be required to demonstrate the
following in order to obtain its order seeking to restrain free expression:
(a) A strong prima facie case on the merits against the underlying defendant.
(b) The conduct of the defendant will cause substantial and irreparable harm to the
interests of the plaintiff.
(c) Reasonable alternative measures, proven on a balance of probabilities, will not
prevent the irreparable harm.
(d) The order is no broader than necessary to restrain the harm at issue - that is, it is
minimally impairing.
(e) The order will be technically feasible and effective, including enforceability in the
foreign jurisdiction(s) at issue.
(f) The salutary effects of the order outweigh the deleterious effects on the rights and
interests of the enjoined party and the public, including the effects on the right to
free expression.
29. In determining whether the plaintiff has established a strong prima facie case, the court
should be mindful that the affected non-party will not have had an opportunity to challenge the
underlying claim against the defendants on its merits. Making an order in such circumstances is
42
See BCCA at [92]
_ 9 _require the onus and cost of proving lack of extraterritorial effects to be borne by the plaintiff
seeking to promote its interests, not the innocent non-party seeking to maintain the status-quo in
the public’s interest.
27. Where there is a realistic possibility that an order with extraterritorial effects may offend
another state’s core values, or run afoul of its law, the order should not be made.42 In the instance
of an order that seeks to restrict free expression on the Internet in foreign jurisdictions, such a
threshold is exceedingly high and unlikely to be met. For example, in this case it appears that
such an order runs contrary to U.S. policy and law, restricting the rights of Internet users to
receive speech that may yet be shown to be lawful.
28. Where a plaintiff demonstrates that an injunction with extraterritorial effects does not
offend another state’s core values or law, then the plaintiff should be required to demonstrate the
following in order to obtain its order seeking to restrain free expression:
(a) A strong prima facie case on the merits against the underlying defendant.
(b) The conduct of the defendant will cause substantial and irreparable harm to the
interests of the plaintiff.
(c) Reasonable alternative measures, proven on a balance of probabilities, will not
prevent the irreparable harm.
(d) The order is no broader than necessary to restrain the harm at issue - that is, it is
minimally impairing.
(e) The order will be technically feasible and effective, including enforceability in the
foreign jurisdiction(s) at issue.
(f) The salutary effects of the order outweigh the deleterious effects on the rights and
interests of the enjoined party and the public, including the effects on the right to
free expression.
29. In determining whether the plaintiff has established a strong prima facie case, the court
should be mindful that the affected non-party will not have had an opportunity to challenge the
underlying claim against the defendants on its merits. Making an order in such circumstances is
42 See BCCA at [92]
_ 10 _an extraordinary remedy. As with the Anton Piller remedy, EFF submits it should require the
applicant to establish a strong primafacie case on the merits of the claim.“
30. EFF further submits that where the issue involves questions of free expression,
particularly with potential global reach, the scales should tilt towards the public interest and a
refusal to make an order restraining free expression. Only in the rarest of circumstances should
Canadian courts seek to restrain free expression in the interest of narrow private rights.
31. When applied with the threshold question of offending foreign state’s laws and norms,
this test would provide the necessary protections for the public interest with respect to free
expression, including the right to receive content on the Internet. Such a specific test, developed
with reference to the stricter American approach, provides guidance to Canadian courts in
addressing Internet disputes with international ramifications, while at the same time providing a
level of international consistency.
PART IV: SUBMISSIONS CONCERNING COSTS
32. EFF requests that no order for costs be made against it and seeks no costs.
PART V: ORDER SOUGHT AND PERMISSION TO PRESENT ORAL ARGUMENT
33. EFF takes no position on the disposition of the appeal, other than to urge this Honourable
Court to adopt the tests outlined above. In addition, EFF seeks leave to present ten (10) minutes
of oral argument at the hearing of the within appeal.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
go; DAVID WOTHERSPOONOctober 5, 2016 Counsel for the Intervener, ElectronicVancouver, British Columbia Frontier Foundation
Qpr-‘DXNIEL A. BYMACounsel for the Intervener, ElectronicFrontier Foundation
43 See e. g. XY, LLC 12. Canadian Topsires Selection Inc, 2013 BCSC 780 at paras 56-57, citing Celanese CanadaInc. v. Murray Demolition Corp, 2006 SCC 36.
- 11 -
PART VI: TABLE OF AUTHORITIES
Jurisprudence Paragraph(s)
Acierno v. New Castle County, 40 F.3d 645, 653 (3rd Cir. 1994) 9
Alexander v. United States, 509 U.S. 544, 550 (1993) 14
Ashcroft v. ACLU, 542 U.S. 656, 670-71 (2004) 12
Author’s Guild v. Google, Inc., 954 F. Supp. 2d 282 (S.D.N.Y. 2013) 10
Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) 15
Bd. of Educ. v. Pico, 457 U.S. 853, 867 (1982) 17
Cachchillo v. Insmed, Inc., 638 F.3d 401, 406 (2nd Cir. 2011) 9
CBS, Inc. v. Davis, 510 U.S. 1315, 1317, 1318 (1994) 14, 15, 16
eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 394 6
J.S. v. Village Voice Media Holdings LLC, 184 Wash.2d 95, 101 (2015) 19
Langdon v. Google, Inc., 474 F. Supp. 2d 622, 629-30 (D. Del. 2007) 11
Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1027 n.5 (9th Cir.
1998) 11
NAACP v. Button, 371 U.S. 415, 438 (1963) 24
Near v. Minnesota, 283 U.S. 697, 706 (1931) 15, 16
Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559, 562 (1976) 14, 15
Nebraska Press Ass’n. v. Stuart, 423 U.S. 1327 14
New York Times Co. v. United States, 403 U.S. 713, 719 (1971) 14
Org. for a Better Austin v. Keefe, 402 U.S. 415, 418 (1971) 14
Overstreet v. United Bhd. of Carpenters & Joiners of Am. Local Union No. 1506,
409 F.3d 1199, 1208 n.13 (9th Cir. 2005) 13
Park Village Apt. Tenants v. Mortimer Howard Trust, 636 F.3d 1150, 1160 (9th
Cir. 2011) 9
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n.7 (1979) 23
Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) 10
Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1119 (9th Cir. 2007)
21
_ 11 _
PART VI: TABLE OF AUTHORITIES
Jurisprudence
Acierno v. New Castle County, 40 F.3d 645, 653 (3rd Cir. 1994)
Alexander v. United States, 509 U.S. 544, 550 (1993)
Ashcroft v. ACLU, 542 U.S. 656, 670-71 (2004)
Author ’s Guild v. Google, Inc., 954 F. Supp. 2d 282 (S.D.N.Y. 2013)
Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963)
Bd. ofEduc. v. Pico, 457 U.S. 853, 867 (1982)
Cachchillo v. Insmed, Inc., 638 F.3d 401, 406 (2nd Cir. 2011)
CBS, Inc. v. Davis, 510 U.S.1315,1317,1318(1994)
eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 394
J.S. v. Village Voice Media Holdings LLC, 184 Wash.2d 95, 101 (2015)
Langdon v. Google, Inc., 474 F. Supp. 2d 622, 629-30 (D. Del. 2007)
Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1027 n.5 (9th Cir.1998)NAACP v. Button, 371 U.S. 415, 438 (1963)
Near v. Minnesota, 283 U.S. 697, 706 (1931)
Nebraska Press Ass ’n v. Stuart, 427 U.S. 539, 559, 562 (1976)
Nebraska Press Ass ’n. v. Stuart, 423 U.S. 1327
New York Times Co. v. United States, 403 U.S. 713, 719 (1971)
Org. for a Better Austin v. Keefe, 402 U.S. 415, 418 (1971)
Overstreet v. United Bhd. ofCarpenters & Joiners ofAm. Local Union No. I506,409 F.3d 1199, 1208 n.13 (9th Cir. 2005)Park Village Apt. Tenants v. Mortimer Howard Trust, 636 F.3d 1150, 1160 (9thCir. 2011)
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n.7 (1979)
Perfect I 0, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007)
Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1119 (9th Cir. 2007)
Paragraph(s)
9
14
12
10
15
17
9
14, 15, 16
6
19
11
11
24
15, 16
14, 15
14
14
14
23
10
21
- 12 -
Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 225 (6th Cir. 1996) 15
Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015) 18
Reno v. ACLU, 521 U.S. 844, 870-71 (1997) 11
Richmond Newspapers v. Virginia, 448 U.S. 555, 576 (1980) 17
Salinger v. Colting, 607 F.3d 68, 83 (2d Cir. 2010) 8
Stanley v. Georgia, 394 U.S. 557, 564 (1969) 11, 17
Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994) 9
Stevo Design, Inc. v. SBR Mktg., 919 F. Supp. 2d 1112, 1125 (D. Nev. 2013) 21
United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 817 (2000) 12, 18
Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 828 (9th Cir. 2013) 8
Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748, 757 (1976) 17
Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982) 8
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) 6
XY, LLC v. Canadian Topsires Selection Inc., 2013 BCSC 780 29
Zenith Radio Corp. v. Hazeltine Research Inc., 395 U.S. 100, 110-112 (1969) 23
Zeran v. America Online, Inc., 129 F.3d 327, 330–31 (4th Cir. 2008) 20
Zhang v. Baidu.com, Inc., 10 F. Supp. 3d 433, 436-440 (S.D.N.Y. 2014) 11
Secondary Sources
Anupam Chander & Uyên P. Lê, Free Speech, 100 Iowa L. Rev. 501, 514 (2015) 20
Erwin Chemerinsky, Injunctions in Defamation Cases, 57 Syracuse L. Rev. 157,
165 (2007) 16
Eugene Volokh & Donald M. Falk, Google First Amendment Protection for
Search Engine Search Results, 8 J.L. Econ. & Pol’y 883 (2012) 11
Wright & Miller, Purpose and Scope of Preliminary Injunctions, 11A Fed. Prac.
& Proc. Civ. § 2947 (3d ed.) 6
PART VII: STATUTORY PROVISIONS
Communications Decency Act of 1996, Pub. L. 104-104, Title V, § 509, 110 Stat. 137 (1996)
(codified at 47 U.S.C. § 230) 230 (b)(1)-(2), (c)(1), (e)(2)-(3), f(3)
_ 12 _Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 225 (6th Cir. 1996)
15
Reed v. Town ofGilbert, 135 S. Ct. 2218, 2227 (2015) 18
Reno v. ACLU, 521 U.S. 844, 870-71 (1997) 11
Richmond Newspapers v. Virginia, 448 U.S. 555, 576 (1980) 17
Salinger v. Colting, 607 F.3d 68, 83 (2d Cir. 2010) 8
Stanley v. Georgia, 394 U.S. 557, 564 (1969) 11 17
Stanley v. Univ. ofS. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994) 9
Stevo Design, Inc. v. SBR Mktg., 919 F. Supp. 2d 1112, 1125 (D. Nev. 2013) 21
United States v. Playboy Entm ’t Grp., Inc., 529 U.S. 803, 817 (2000) 12 18
Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 828 (9th Cir. 2013) 8
Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748, 757 (1976) 17
Weinberger v. Romero—Barcelo, 456 U.S. 305, 312 (1982) 8
Winter v. Natural Res. Def Council, Inc., 555 U.S. 7, 20 (2008) 6
XY, LLC v. Canadian Topsires Selection Inc., 2013 BCSC 780 29
Zenith Radio Corp. v. Hazeltine Research Inc., 395 U.S. 100, 110-112 (1969) 23
Zeran v. America Online, Inc., 129 F.3d 327, 330-31 (4th Cir. 2008) 20
Zhang v. Baidu.com, Inc., 10 F. Supp. 3d 433, 436-440 (S.D.N.Y. 2014) 11
Secondary Sources
Anupam Chander & Uyén P. Le, Free Speech, 100 Iowa L. Rev. 501, 514 (2015) 20Erwin Chemerinsky, Injunctions in Defamation Cases, 57 Syracuse L. Rev. 157,165 (2007) 16Eugene Volokh & Donald M. Falk, Google First Amendment Protection forSearch Engine Search Results, 8 J.L. Econ. & P0l’y 883 (2012) 11Wright & Miller, Purpose and Scope ofPreliminary Injunctions, 11A Fed. Prac.& Proc. Civ. § 2947 (3d ed.) 6
PART VII: STATUTORY PROVISIONS
Communications Decency Act of I996, Pub. L. 104-104, Title V, § 509, 110 Stat. 137 (1996)(codified at 47 U.S.C. § 230) 230 (b)(1)-(2), (c)(1), (e)(2)-(3), f(3)
- 13 -
Communications Decency Act of 1996, § 230
(b) Policy
It is the policy of the United States--
(1) to promote the continued development of the Internet and other interactive computer services
and other interactive media;
(2) to preserve the vibrant and competitive free market that presently exists for the Internet and
other interactive computer services, unfettered by Federal or State regulation;
(c) Protection for “Good Samaritan” blocking and screening of offensive material
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker
of any information provided by another information content provider.
(e) Effect on other laws
(2) No effect on intellectual property law
Nothing in this section shall be construed to limit or expand any law pertaining to intellectual
property.
(3) State law
Nothing in this section shall be construed to prevent any State from enforcing any State law that
is consistent with this section. No cause of action may be brought and no liability may be
imposed under any State or local law that is inconsistent with this section.
f) Definitions
As used in this section:
(3) Information content provider
The term “information content provider” means any person or entity that is responsible, in whole
or in part, for the creation or development of information provided through the Internet or any
other interactive computer service.
_ 13 _Communications Decency Act of I996, § 230
(b) Policy
It is the policy of the United States--
(1) to promote the continued development of the Internet and other interactive computer servicesand other interactive media;
(2) to preserve the vibrant and competitive free market that presently exists for the Internet andother interactive computer services, unfettered by Federal or State regulation;
(c) Protection for “Good Samaritan” blocking and screening of offensive material
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speakerof any information provided by another information content provider.
(e) Effect on other laws
(2) No effect on intellectual property law
Nothing in this section shall be construed to limit or expand any law pertaining to intellectualproperty.
(3) State law
Nothing in this section shall be construed to prevent any State from enforcing any State law thatis consistent with this section. No cause of action may be brought and no liability may beimposed under any State or local law that is inconsistent with this section.
1') Definitions
As used in this section:
(3) Information content provider
The term “information content provider” means any person or entity that is responsible, in wholeor in part, for the creation or development of information provided through the Internet or anyother interactive computer service.