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Has “Operation Goliath” backfired for the MPAA?
On Friday, a Mississippi federal judge handed Google some good news by not only granting the web giant’s motion for a preliminary injunction against Jim Hood, the state attorney general, but also finding that it is likely that “editorial judgment as to [Google’s] search results is constitutionally protected.”
As revealed by the Sony hack, the MPAA worked with leading law enforcement officials like Hood to get tough on Google, often blamed by the film studios for contributing to copyright infringement by allowing links to pirate sites or not adopting stronger filters for YouTube.
Although a bit of strong-arming may or may not be politics as usual (Google once hired presidential contender Ted Cruz to lobby Texas’ attorney general), “Operation Goliath” seemed an opportunity to get Hood to investigate Google for some of its practices. In particular, these practices included Google’s acceptance of advertisements by online pharmacies, but content theft was part of the conversation too.
Earlier this month, U.S. District Judge Henry Wingate issued a temporary restraining order over subpoenas issued by Hood. On Friday, the judge followed up with a more definitive order and written opinion.
Not surprisingly, the judge has accepted Google’s arguments that it is likely immunized on the posting of third-party content by the Communications Decency Act. The judge points to a letter from Hood and 46 other state attorneys demonstrating awareness that federal law restricts ability to take action on those using Internet platforms to promote prostitution.
Google also finds success in the argument that the Fourth Amendment protects from a broad subpoena. The judge says Hood can’t “wage an unduly burdensome fishing expedition into Google’s operations.”
Maybe most worrisome to film studios is the judge’s remarks on the First Amendment and copyright:
“Furthermore, the court also is persuaded that Google has demonstrated a substantial likelihood that it will prevail on its claim that Attorney General Hood has violated Google’s First Amendment rights by: regulating Google’s speech based on its content; by retaliating against Google for its protected speech (i.e., issuing the subpoena); and by seeking to place unconstitutional limits on the public’s access to information. First, the relevant, developing jurisprudence teaches that Google’s publishing of lawful content and editorial judgment as to its search results is constitutionally protected… The Attorney General’s interference with Google’s judgment, particularly in the form of threats of legal action and an unduly burdensome subpoena, then, would likely produce a chilling effect on Google’s protected speech, thereby violating Google’s First Amendment rights.”
Judge Wingate also writes that state attorneys lack the authority to enforce the federal copyright act, and moreover, that Hood’s requests were improper in light of the safe harbors of the Digital Millennium Copyright Act.
If it’s a fight for federal agencies instead of state ones, new reports detailing how the FTC almost brought a lawsuit against Google over antitrust activity and Google’s lobbying influence in Washington D.C. could be relevant. For now, Google has put a dent in “Operation Goliath.” An appeal from Hood’s office could come, as he was supported by a dozen attorneys general throughout the nation who argued that an adverse ruling could interfere with their ability to make use of administrative subpoenas to conduct investigations.
The full decision is below.
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