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Here’s some late-breaking Friday news that will be cheered at the headquarters of the Motion Picture Association of America, as well as by state attorney generals throughout the nation.
The 5th Circuit Court of Appeals has decided to vacate an injunction prohibiting Mississippi AG Jim Hood from bringing a civil or criminal charge against Google for making accessible third-party content like imported prescription drugs and pirated movies.
To understand why this is such a big deal requires a short trip back to the Sony hack, when it was revealed that the MPAA worked with leading law enforcement officials like Hood to get tough on Google in what was then called “Operation Goliath.”
Google was incensed at the disclosures, blogging about how the “MPAA conspired to achieve SOPA’s goals through nonlegislative means” and bringing a lawsuit aimed at stopping Hood’s subpoena requesting all sorts of information. It wanted broad injunctive relief. The web giant argued that Hood’s efforts violated Section 230 of the Communications Decency Act — providing some immunity for ISPs on third-party content — as well as the First and Fourth Amendments of the U.S. Constitution. According to a Google memorandum, “[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.”
In March 2015, despite blowback from 46 other AGs around the nation, U.S. District Judge Henry Wingate agreed to the injunction, saying Hood can’t “wage an unduly burdensome fishing expedition into Google’s operations.”
The 5th Circuit today reverses that — and even more spectacularly decides to instruct the lower judge to dismiss Google’s case.
Circuit judge Stephen Higginson speaks in his opinion about the “the importance of preserving free speech on the internet” and disagrees with Hood in various respects, including the AG’s view of what Google was doing in its push for injunctive relief.
Nevertheless, the injunction is deemed improper first because the controversy is not ripe and second, because there’s no imminent irreparable injury.
It’s not ripe because when Hood issued an administrative subpoena, he had no authority to enforce it. “The issuing agency could not itself sanction non-compliance,” notes Higginson.
The 5th Circuit also writes that the injunction covered “fuzzily defined range of enforcement actions that do not appear imminent. We cannot on the present record predict what conduct Hood might one day try to prosecute under Mississippi law. Hood’s complaints to Google and the public have been wide-ranging, and as Google stresses in its brief, the administrative subpoena is a ‘pre-litigation investigative tool’ seeking information on a broad variety of subject matters— ranging from alleged facilitation of copyright infringement, illegal prescription, drug sales, human trafficking, the sale of false identification documents and credit card data theft.”
And so, without addressing the reasonableness of the subpoena nor whether Google’s immunity and constitutional arguments hold water if Hood ever did attempt to prosecute Google for facilitating piracy, the appeals court decides that the federal judge’s decision to issue an injunction was in error. The decision gives Hood some latitude in investigating Google and also probably gives the MPAA some breathing room from some of the discovery demands that were made in follow-up legal actions from Google.
“We believe the Fifth Circuit’s decision speaks for itself,” said a spokesperson for the MPAA. “But we would like to take this opportunity to thank Attorney General Hood for his ongoing efforts and for his commitment to supporting the rule of law on the internet.”
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