Google Has a Big Canadian Problem — and It's Getting Desperate

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If one didn't know any better, it would be reasonable to assume that Google has lost its mind. See a lawsuit filed Monday by the web giant.

First some background.

On June 28, Google suffered a humongous legal defeat. There are losses and then there are losses, and this one was a super duper very bad loss for the Menlo Park, Calif.-based company. In Canada, the country's highest court upheld an injunction ordering Google to remove certain websites ruled to be infringing intellectual property from its search engine. GLOBALLY.

The details of what led to this decision —  a small Canadian tech company called Equustek Solutions suing a onetime distributor for trademark infringement and misappropriation of trade secrets — are not particularly important. What is significant is that the case dealt with intellectual property and the possibility that Google might have to do more than pay lip service to piracy. Thus, it's no surprise that as Google went up the Canadian appellate circuit with escalating outrage, the film and music industries intervened to ensure that Equustek got what it wanted.

"The Internet has no borders — its natural habitat is global," wrote Canadian Justice Rosalie Abella last month. "The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates — globally."

It'd be one thing if this were China, and the Communists were ordering the censoring of politically unfavorable information. In such a case, Google could walk away from the market. That's exactly what happened in 2010.

But this was Canada, for gosh sake. What would be next? Hollywood forum-shopping its piracy cleanup north of the border? Or how about Europe looking to impose a "right to be forgotten" worldwide? Survey says.

So what's Google doing now?

The company has filed a lawsuit in California federal court against Equustek.

"Google brings this action to prevent enforcement in the United States of a Canadian order that prohibits Google from publishing within the United States search result information about the contents of the internet," states the introduction in the complaint (read here, courtesy of Wired).

A federal judge can now give Google what it requests by issuing a declaration that the injunction is unenforceable as inconsistent with the First Amendment, the Communications Decency Act and international comity, but does it matter? What a U.S. judge can't do is stop a Canadian court from imposing sanctions on Google for failure to comply with the injunction.

So has Google lost its mind?

Not exactly.

In the June 28 decision from the Supreme Court of Canada, it was noted that Google may have an out from certain kinds of worldwide injunctions. Namely, legally troublesome ones.

"Google's argument that a global injunction violates international comity because it is possible that the order could not have been obtained in a foreign jurisdiction, or that to comply with it would result in Google violating the laws of that jurisdiction, is theoretical," stated the decision. "If Google has evidence that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is always free to apply to the British Columbia courts to vary the interlocutory order accordingly."

Thus, the lawsuit filed Monday may best be interpreted as a prelude to yet another shot by Google in Canada to escape having to remove websites from its U.S. index.

Still, success in one country doesn't guarantee triumph in the other. Losing one's rights and violating someone else's rights are potentially two separable concepts. An American court could agree with Google that an injunction abridges the tech company's free speech with enough room for a Canadian court to nevertheless reiterate that complying won't cause Google to violate any American laws. Yes, there is that bit about "interfering with freedom of expression," but it's stuffed inside a larger conditional statement. Desperate times prompt Google to test this. Google isn't losing much by taking a shot that a persuasive American authority can convince a Canadian one.