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Why our work at the Supreme Court matters: A case study

As many of you already know, OpenMedia is busy working on an intervention on a critical Supreme Court case being heard this winter. We'll be filing our final arguments next week, and we're thrilled to be a part of the conversation around this case, which will have broad implications for the future of access to information and free expression online.

If you'd like to learn more about the story so far, check out our infographic and resource page to get the lowdown.

Over the course of speaking with our community about our work at the Supreme Court, many have asked for clarity on how the outcome of this case could impact our free expression rights.

It all started with the underlying case -- Equustek Solutions Inc. v Jack -- in which the plaintiff, Equustek, alleged that the defendant violated their trade secrets and passed off a counterfeit product in third-party sales over the Internet.

This case, and the subsequent case that pulled in global search giant, Google, because of an order to delist items from its worldwide search results, opens the door to a very significant conversation about determining when and how content is taken down online, or in this case, when a search engine can be ordered by the courts to remove search results. It is for this reason that OpenMedia jumped at the opportunity to be involved in, and help shape with the input of our community, the outcomes of this conversation.

As we are so often reminded, when these critically important policy decisions are made without the input of the public, they rarely reflect the wishes and priorities of Internet users. You need look no further than the ill-begotten Trans-Pacific Partnership (TPP) to find a shining example of digital policy guided by the expert hand of lobbyists and Big Media that completely ignores the concerns of the public, and the ways in which we create and share culture in the digital age.

Some will note that in Equustek Solutions Inc. v Jack, the plaintiff's request for removing search results seems reasonable. Importantly, OpenMedia is not taking sides on the original case, or the merits of the decision made by the lower courts. Instead, OpenMedia is raising an important issue: that restricting what search engines can display in their results represents a significant limitation on free expression and access to information, and as such, requires thoughtful consideration of how exactly takedowns of this sort should be handled.

What's more, we all deserve to understand how the law functions, and to benefit from clear, accessible rules. In fact, during the process of creating our crowdsourced free expression report, this was an issue that popped up so many times in conversation with Internet users that we made a specific point of including the following in our policy recommendations:

Clear, simple copyright rules, designed to be accessible to the people they are intended to serve.

This is a key part of OpenMedia's argument to the Supreme Court. In our submission, we will call on the Court to adopt a framework for when to limit expression online -- a framework that takes into account the core functions of the Internet (like search engines) and recognizes that limiting these functions puts real limits on our constitutional right to free expression. We will argue that with such a framework in place, we will all benefit from having a clear rubric to reference when making decisions over what stays online and what goes, and that the increased level of predictability this will bring to our lives will be an improvement over the ad-hoc nature of takedowns as they are currently managed.

A case study

To illustrate why we need this new framework, let's take a closer look at a different case that is currently winding its way through the appeal process in British Columbia. In the case of Vancouver Aquarium Marine Science Centre v. Charbonneau, Vancouver-based filmmaker Gary Charbonneau was sued by the Vancouver Aquarium over a documentary he produced about whale and dolphin breeding and captivity at the centre.

The Vancouver Aquarium alleges that Charbonneau infringed its copyright in the making of his documentary, and sought an injunction to have the video removed from YouTube and Vimeo, where Charbonneau had uploaded it. According to Charbonneau, the Aquarium contacted both Vimeo and YouTube with a request to remove the film. Although YouTube refused, Vimeo did remove it from their site until the filmmaker defended himself, at which point Vimeo demanded the Aquarium provide proof that they were moving forward with legal action if they wanted the film to stay down.

In fact, as Charbonneau told me when I spoke with him, it seemed as though the lawsuit was exclusively filed to have the film removed from the site.

I didn't find out about it until CBC broke the news. So we're under the strong impression that the Aquarium was never sueing me, they were just using the court system to keep [the documentary] off of Vimeo.

As documentary filmmakers know all too well, documentary work often relies on using content that is already out there in the world, hoping that our copyright laws protect this use under fair dealing. As they also know, oftentimes the real test of whether their documentary will face legal action depends on what content has been used, and how much money the copyright holder has to take the filmmaker to court. Importantly, documentary work allows us to be critical of the world around us, and to ask questions and invite discussion on social and political issues of interest. In Charbonneau's case, the questions he raises about whale breeding and captivity are those issues.

Charbonneau believes that his film was targeted because of what he said, not the images he used to tell the story. 

If the Vancouver Aquarium believed that the documentary portrayed them in an unfair light, they have plenty of legal recourse through libel and defamation laws. But they chose not to go this route, and instead pushed to have the documentary scrubbed from the web by using (or abusing) copyright law.

And unfortunately in Charbonneau's case, the Aquarium was somewhat successful in its aims, and was awarded an injunction that required the filmmaker to edit his documentary and remove the allegedly infringing content -- about five minutes of footage. Frustratingly for Charbonneau, even this wasn't enough for the Aquarium, as even after he had removed all of the content that was originally objected to in the lawsuit, the Aquarium went on to add material to the "copyright offending" list.

The impacts of the ruling are not lost on Charbonneau:

Essentially no artist across Canada has protection anymore, according to this judge, because the policy of a corporation will trump the law. That's frightening, to be quite honest.

Charbonneau has been granted leave to appeal the decision by the BC Court of Appeal, and his lawyer will be making the argument that this is a case in which copyright has been misused to censor free expression. And we tend to agree -- copyright is not the tool we'd like to see used when there is debate and discussion over political speech, but it sadly has a long track record of holding that dubious space, both in Canada's legal system and others.

"We didn't have to appeal," said Charbonneau. "And if we win, what do we get? We just put the five minutes back up. The reason why we appealed it is exactly what we just talked about: it went beyond us proving that we have the right to have those five minutes up. It was the precedent. We did this for all artists across Canada...Artists need to be protected against copyright, and this judgement goes against that."

So what does this have to do with OpenMedia's Supreme Court Intervention?

The Charbonneau case fits neatly together with the work we're doing at the Supreme Court -- and here's why. If the framework OpenMedia is arguing for the Supreme Court to implement had been adopted before the Charbonneau case first arose, a judge would have had a tool to situate the discussion in relation to free expression and injunctions that seek to limit such free expression online.

Our framework would have required the judge to carefully consider Charbonneau's freedom of expression -- and by extension all of our freedom to seek information and opinions -- in the process of deciding whether to issue such an injunction. A judge would have been required to carefully consider the implications for both free expression and the Internet itself as a tool of such expression, and to implement a test that would require a balancing of Charbonneau's right to free expression against the other issues at stake in this case, such as the Vancouver Aquarium’s copyright claims.

The result would have been a process where both parties in the case, as well as the public, could feel confident that the decision sought to preserve free expression in the context of the Internet, and that copyright was not being misused to censor speech online. This is the outcome we hope for in all such cases: fair, judicial oversight, clear and predictable rules, and a system that can be pointed to and amended over time to suit the rapidly-changing environment in which we all express ourselves and share knowledge.

We're looking forward to advancing this kind of thinking at the Supreme Court. With the support of our community, we've already been able to make huge strides toward a broader understanding of free expression online, and when it is and is not reasonable to limit such expression. We hope that you will continue to support our efforts.

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