12:29pm PT by Eriq Gardner
MPAA Slams Google's Efforts to Learn About Its Anti-Piracy Strategies
The Motion Picture Association of America and Google are engaged in a war of words over who is doing worse things to the First Amendment.
On Monday, the Hollywood studio trade group responded in court to Google's attempt to pry forth documents related to an investigation by Mississippi's Attorney General Jim Hood. Google argues that communications by the MPAA, its members, its law firm and a public advocacy group it has funded will inform an ongoing legal battle with Hood's office.
The MPAA is standing behind Hood's efforts to subpoena information from Google.
"Google portrays itself as the innocent victim of malicious efforts to abridge its First Amendment rights," states a memorandum from the MPAA and the firm of Jenner & Block. "In reality, Google is far from innocent. Google facilitates, and profits from, the distribution of third-party content that even Google concedes is 'objectionable.' 'Objectionable' is Google’s euphemism for 'illegal.'”
Resistance to subpoenas is not unusual — clearly Google and MPAA both share an allergy to absolute transparency — but each argument against discovery is different.
In Google's battle with Hood, the web giant argues that the Mississippi AG wishes to regulate Google’s speech based on the content that appears in search engines or on YouTube. In turn, the MPAA argues that it has its own rights deriving from the First Amendment right to petition grievances.
The MPAA says that it is attempting to cooperate with Google's documents, but doesn't quite get the breadth of what Google is after.
"Purportedly for the purpose of divining Attorney General Hood’s intentions, Google insists on receiving tens of thousands of highly confidential documents that Attorney General Hood never even saw or was aware of," states the memorandum. "Even if documents that the MPAA or Jenner did exchange with Hood could arguably be relevant, clearly documents that the MPAA or Jenner did not exchange with Hood are not. The opinions, legal assessments, and views of the MPAA and its counsel are irrelevant to Attorney General Hood’s motives."
The MPAA also slams Google for relying upon documents exposed by the Sony hack. The trade group says that Google is being "disingenuous" by sourcing these leaked documents to reporters and asserts that such documents are "likely inadmissible."
In fact, in a provocative note that raises a novel legal issue that's been anticipated ever since the Sony Hack, the MPAA warns about the ramifications of allowing hack documents to be used in court in this fashion. "Quite apart from the policy concerns that arise if lawyers are allowed to use confidential documents first obtained by hackers, the fact that some privileged documents were published in the wake of the Sony hack will trigger subsequent litigation over privilege assertions," it says.
Google's motives for its document hunt are treated with a huge dose of skepticism by the MPAA.
According to the memorandum (read in full here), Google isn't so much interested as using documents in its legal fight with Hood, but gathering "the MPAA’s strategies to protect its members’ copyrighted material" and "to disseminate these documents publicly as part of its ongoing public relations war."
The MPAA adds, "But the most fundamental purpose of these Subpoenas is to send a message to anyone who dares to seek government redress for Google’s facilitation of unlawful conduct: If you and your attorneys exercise their First Amendment right to seek redress from a government official, Google will come after you. The Court should not allow Google’s abuse of the litigation process."