In a potentially big court ruling, Google has gotten a Mississippi federal court to issue a preliminary injunction against Jim Hood, the state attorney general.
Hood has been probing the web giant for facilitating the distribution of infringing content and goods. The investigation exploded into public view during the fallout from the Sony hack when stolen documents related to “Project Goliath” were exposed. The documents showed how the MPAA worked with leading law enforcement officials throughout the nation to get tough on Google, had advance knowledge of subpoenas and even drafted a Hood letter to Google.
In December, Google applied for a preliminary injunction, and while the MPAA wasn’t directly involved as a party, Google took the opportunity to slam the film trade group for having “conspired to achieve SOPA’s goals through non-legislative means.”
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Google has now updated that post by proclaiming victory.
“Today, a federal court entered a preliminary injunction against a subpoena issued by the Mississippi attorney general,” writes Google general counsel Kent Walker. “We’re pleased with the court’s ruling, which recognizes that the MPAA’s long-running campaign to censor the web — which started with SOPA — is contrary to federal law. We’ll continue working to protect people using our services: In 2014 alone, we removed more than 500 million bad ads and over 180 million YouTube videos for policy violation.”
A key issue in the battle was Section 230 of the Communications Decency Act (CDA) — which provides some immunity for interactive computer services on third-party content.
“[I]f a state attorney general can punish, irrespective of well-established federal law, any search engine or video-sharing platform whenever he finds third-party content he deems objectionable, search engines and video-sharing platforms cannot operate in their current form,” Google argued.
Hood responded that Google’s motion for an injunction was premature, that he was allowed to investigate the web giant for violating the state’s consumer protection laws, and that the preemptive litigation wasn’t ripe for review because it merely assumed an action in violation of federal law. The state attorney general pointed among other things to other successful investigations like one by the U.S. Department of Justice and Rhode Island’s district attorney that resulted in a forfeiture of $500 million over Google’s acceptance of advertisements placed by online pharmacies.
Although the MPAA didn’t submit any documents in the case, several outfits with deep connections to the content industry submitted amicus briefs. For example, the International AntiCounterfeiting Coalition (of which, big studios are members) wrote that it was “critical” that state attorneys general retain the ability to investigate piracy abuses.
“The CDA does not immunize Internet service providers from any and all activity they may engage in, and no online company should be allowed to preempt any state investigation into its alleged wrongdoing by overstating the scope of the immunities afforded by the CDA,” wrote the IACC.
Attorneys general from Kentucky, Arizona, Connecticut, Illinois, Iowa, Maryland, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont and Washington also stood in support of Hood, telling the judge that the lawsuit “involves matters of significant national importance,” that the immunity afforded digital companies like Google under the CDA was not absolute, and that an adverse ruling could interfere with their ability to make use of administrative subpoenas to conduct investigations.
“Google must not be allowed to bypass state subpoena review processes and derail a legitimate state consumer protection investigation by filing premature declaratory judgment lawsuits in federal court,” wrote these other states in an amicus brief.
Others in the tech industry offered their own support for Google.
“If CDA 230 was disregarded, and online service providers were required to respond in full to subpoenas like this one, they would inevitably face extraordinary legal costs,” wrote the Electronic Frontier Foundation. “That would be enough for most businesses to get out of the interactive content business all together, as everything from comments on news stories to sharing of home videos could be a recipe for expensive litigation.”
U.S. District Judge Henry Wingate‘s opinion won’t be available for days and might just stop Hood from taking actions against Google until he fleshed out the full reasoning.
According to local press, he read his ruling from the bench today and offered some commentary.
“At this point, Google has the better part of the argument on the reach of the Communications Decency Act of 1996,” he said. “The fact that the court has issued an injunction does not mean the court has reached a final decision in the case — just that the court wishes to maintain the status quo.”
Nevertheless, Hood says he is ready to appeal.
“Google’s approach is to try to confuse the issue,” he said. “This case is not about censorship of the internet or free speech, but whether the attorney general has the authority to determine whether Google has assisted third-party sites in breaking the law. And that is what we intend to do.”
Email: Eriq.Gardner@THR.com
Twitter: @eriqgardner
