In my last two articles I dealt with some aspects of civilizations using a variety of technologies when making the transition from the physical to the digital world – as they adapt to the drastic increase in population from 1 billion a century ago to 7 billion now.
Forgotten in this transition is the fact that we continue to use the same words as our ancestors though words lose meanings when technology and institutions change. We went from duels to preserve honor to 140-word tweets with notions of honor long forgotten and when words tweeted can be easily misinterpreted. We went from stone money to bitcoins, forgetting in the process what “money” really is, and why it is important to have a unit of account.
This article deals with a third case, one in which courts struggle with interpreting Google’s business practices and also with the question of how words used for physical highways apply – or do not – to digital highways.
In a June 2017 decision, the Supreme Court of Canada ruled against Google in an intellectual-property case, which had dragged on since 2011, over whether judges can apply their own country’s laws to all of the Internet when piracy happens. In a 7-2 decision, the court agreed that a British Columbia judge had the power to issue an injunction forcing Google to scrub search results about pirated products not just in Canada, but everywhere in the world.
However, on November 2, 2017, a California district court granted Google’s request for a preliminary injunction preventing enforcement of the Canadian court order in the US. What happens now is not clear: Will there be an international debate, or will each country impose domestic penalties based on their own courts’ decisions, since domestic courts cannot enforce decisions in foreign lands?
The answer is not yet clear, but as pointed out below, the Canadian court decision is in the ballpark, drawing on precedents, whereas the California overturning of it is not.
The case, started in 2011, concerned distributors (Datalink Technology Gateways) who – according to Equustek Solutions – were selling the company’s pirated intellectual property, yet Google Search was directing inquirers to this distributor’s site (Google LLC v. Equustek Solutions Inc, 2017 WL 5000834, ND Cal Nov 2, 2017). In 2012, after discovering that Datalink, after the 2011 case, moved to sell its products at an unknown physical location, Equustek asked Google to de-list Datalink’s websites from search results. Google refused. The Canadian court granted Equustek’s request and Google complied by de-indexing Datalink webpages from appearing in its Canada-specific search results – but not those for the rest of the world.
However, the California court, in granting Google’s request for a preliminary injunction, argued that Google likely satisfied Section 230 of the US Communications Decency Act as a service provider that linked to third-party content, whereas the Canadian court’s order violated online “free speech” concerns, which Section 230, according to the US court interpretation, protected.
Does it? According to the wording of Section 230, in order to comply with the “free speech” reading, companies must show that (1) they are “providers or users of an interactive computer service,” (2) the information in question is “provided by another information content provider,” and (3) the foreign court order would treat the company as “publisher or speaker” of that information, in which case Section 230 grants the company (as a “common Internet carrier”) an exemption from liability for unprotected speech – provided the companies do not exercise editorial control.
But what does it mean that Google “does not exercise editorial control” and just “carries” the information?
Consider the editor of a respectable physical medium (“publisher or speaker”) publishing ads on its pages pinpointing the location of stolen goods. The physical medium complies with Section 230: The newspaper is interactive (anyone can write a letter to the editor) and the ad was provided by another “information provider.” The physical medium does not change the content of the ad – so it does not “exercise editorial control.” Yet would a physical medium publish such ads? Would a broadcasting company put on such ads? It is not only that these traditional media would not put up ads publicizing the availability and location of stolen goods, they already know that “free speech” does not mean accepting ads for even legal items (cigarettes).
The Canadian courts appear to have relied on such precedents from the physical world when implying that Google does “exercise editorial control” – by not deleting information about accessing stolen goods.
Or consider the case from another angle, by drawing similarities and differences between digital and physical highways. True, stolen goods travel on physical highways too, yet nobody can sue either the owners of highways, or the car, train, plane, bicycle companies transporting the stolen goods. The law targets the thieves.
Google Search is the digital equivalent of a combination of physical transportation, physical highways and advertising boards nearby: It guides the potential buyers with the speed of light to the places where the stolen goods are being resold – something no advertising boards would be allowed to do.
The California court did not consider what the terms ‘free speech’ or ‘e-commerce’ mean in this particular context. ‘Free speech’ was never meant to imply rights to guide people to locations where stolen goods are sold, and the term ‘commerce’ has always referred to a sequence of legal transactions
Imagine if electronic boards on highways were constantly informing drivers of the location of stolen goods, or of the sale of illegal substances (drugs) and services (say, whorehouses – outside of Nevada). Or electronic boards in airports would promptly inform travelers in foreign lands where they can promptly buy stolen property. Domestic courts would prohibit such domestic advertising, even though they comply with the three “physical” aspects of Section 230. “Free-speech clauses” notwithstanding, electronic boards cannot advertise the location of selling illegal drugs.
The US court reached its decision (an erroneous interpretation, as suggested above) by emphasizing that “Google does not ‘provide’ that [pirated, or defamatory] content within the meaning of Section 230.” (See, for example, O’Kroley v. Fastcase, Inc, 831 F.3d 352, 6th Cir 2016.) The court’s main point in this November decision was that Google was harmed because the Canadian order restricted online “free speech” and e-commerce activity that Section 230 protects.
But the California court did not consider either what the terms “free speech” or “e-commerce” mean in this particular context. “Free speech” was never meant to imply rights to guide people to locations where stolen goods are sold, and the term “commerce” has always referred to a sequence of legal transactions. Informing buyers of the location of stolen goods is not part of what we call “commerce” or a “commercial society”: Countries allowing such practices are referred to as “lawless.”
This is just another example of courts misusing well-established terms when drastic technological changes happen, failing to distinguish the “things” – established commercial principles – from the superficial noises that technological changes bring about.
Indeed, the awareness that when technology and institutions change, words – such as “free speech” and “commerce” – risk losing their traditional, correct meanings, appears now much weakened – and not only in this particular case.
Reuven Brenner lectures at McGill University’s Desautels Faculty of Management. His last book was A World of Chance (2008).