Copyright Implications Of A 'Right To Be Forgotten'? Or How To Take-Down The Internet Archive.

They say the internet never forgets. From time to time, someone wants to challenge that dictum.

In our earlier posts, we discussed the so-called "right to be forgotten" in connection with a Canadian trade-secret misappropriation and passing-off case and an EU privacy case. In a brief ruling in October, the Federal Court reviewed a copyright claim that fits into this same category. In Davydiuk v. Internet Archive Canada, 2014 FC 944 (CanLII), the plaintiff sought to remove certain pornographic films that were filmed and posted online years earlier. By 2009, the plaintiff had successfully pulled down the content from the original sites on which the content had been hosted. However, the plaintiff discovered that the Internet Archive's "Wayback Machine" had crawled and retained copies of the content as part of its archive.

If you're not familiar with the Wayback Machine, here is the court's description: "The 'Wayback Machine' is a collection of websites accessible through the websites 'archive.org' and 'web.archive.org'. The collection is created by software programs known as crawlers, which surf the internet and store copies of websites, preserving them as they existed at the time they were visited. According to Internet Archive, users of the Wayback Machine can view more than 240 billion pages stored in its archive that are hosted on servers located in the United States. The Wayback Machine has six staff to keep it running and is operated from San Francisco, California at Internet Archive's office. None of the computers used by Internet Archive are located in Canada."

The plaintiff used copyright claims to seek the removal of this content from the Internet Archive servers, and these efforts included DMCA notices in the US. Ultimately unsatisfied with the results, the plaintiff commenced an action in Federal Court in Canada based on copyrights. The Internet Archive disputed that Canada was the proper forum: it argued that California was more appropriate since all of the servers in question were located in the US and Internet Archive was a California entity.

Since Internet Archive raised a doctrine known as...