Appeals Court Says Google Must Take Further Abuse From AG Jim Hood Before It Can Challenge Hood's Abusive Behavior

from the you-must-get-fucked-a-little-longer-before-we-can-examine-complaints-of-chafing dept

Mon, Apr 11th 2016 8:31am — Tim Cushing

Towards the end of 2014, Google filed for an injunction against Mississippi Attorney General Jim Hood, whose close ties with the MPAA had led to a sustained campaign of harassment over Google's supposed lack of interest in policing the entire internet for infringing material.

Early in 2015, the district court granted Google's requested injunction against Hood's 79-page subpoena, which the court noted was a "burdensome fishing expedition" that went beyond the bounds of what a state AG could actually demand. Not only that, but the court noted that many of Hood's actions were blocked by Section 230 of the CDA because the content in question had been uploaded by third parties.

Unfortunately for Google, the Fifth Circuit Appeals Court has reversed the lower court's decision and vacated the injunction. It's being portrayed as a victory for the MPAA and its kept man, Jim Hood, but those actually reading the decision will find the reversal is just procedural. TL; DR: Google must face additional legal harassment from Jim Hood before it can challenge said legal harassment in a federal court.

We conclude that the district court erred in granting injunctive relief because neither the issuance of the non-self-executing administrative subpoena nor the possibility of some future enforcement action created an imminent threat of irreparable injury ripe for adjudication.

The decision also notes that it is passing no judgment on Hood's subpoena nor his other actions against Google.

We express no opinion on the reasonableness of the subpoena or on whether the conduct discussed in the parties’ briefs could be held actionable consistent with federal law.

Which works out in Hood's favor, as a great deal of the opening of the opinion details the many, many actions Google undertakes to address online piracy -- including its swift responsiveness to Hood's increasingly ridiculous demands. [emphasis added]

Google has made some changes in response to Hood’s investigation. It created a “trusted flag” mechanism through which Google promptly reviewed videos Hood’s office complained about. After being trained on that tool, Hood’s office flagged seven videos, six of which Google quickly took down. When asked by the district court, Hood’s counsel could not identify any investigatory efforts related to the videos his office flagged. His office has nevertheless asked that Google immediately remove flagged videos pending review and “consider implementing a more comprehensive content evaluation process.”

As for the broad subpoena the company is challenging, Google has already turned over 100,000 pages of documents in response. These documents showed the content targeted by Hood's office (but not, notably, by any investigation) was generated by third parties. This still wasn't enough for Hood, who refused to narrow the scope of the subpoena -- leading directly to Google's injunction request and the district court's grant of this request.

The Appeals Court -- while reversing the injunction -- notes that Hood's actions against Google do present possible First Amendment issues, but nothing about the actions taken by both parties to date brings it to the level where it feels it can uphold Google's request. The court similarly finds Hood's attempt to force the federal court system to resolve this (in his favor) by denying Google the right to bring its challenge of his actions to a federal court -- either at this point or at any point in the future.

We first reject Hood’s contention that we can resolve this case on the simple ground that the district court lacked federal-question jurisdiction. Federal courts have jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. We apply the “well-pleaded complaint rule” to determine whether a suit arises under federal law, asking “whether the plaintiff has affirmatively alleged a federal claim.” New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 328 (5th Cir. 2008). As a corollary, “anticipated or potential defenses, including defenses based on federal preemption, do not provide a basis for federal question jurisdiction.” Id. Here, Google brings four claims under 42 U.S.C. § 1983 alleging violations of the United States Constitution and federal statutory law. This satisfies the well-pleaded complaint rule.

Focusing on Google’s claims for declaratory relief, Hood protests that Google really presents only artfully pleaded anticipated defenses to a future state-law action—but he is wrong, as illustrated by our recent decision in NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389 (5th Cir. 2015)

In the end, it boils down to Hood having to make some forward progress in his "investigation." As it stands now, Google is on the receiving end of an incredibly broad subpoena and has complied with portions of it. It has challenged the subpoena based on anticipated actions by Hood in the future if it fails to comply with all aspects of it, but Hood has not moved forward with any punitive actions as of yet. Until he does, the court is unable to support an injunction against Hood.

The statute under which this administrative subpoena was issued gives Hood no authority to enforce it; instead, if the recipient refuses to comply, the Attorney General “may, after notice, apply” to certain state courts “and, after hearing thereon, request an order” granting injunctive or other relief and enforceable through contempt.

[...]

Hood has not brought an enforcement action. And Google does not contest Hood’s assertions that it could raise its objections to the administrative subpoena if Hood ever brings an enforcement proceeding. The only real difference is that we have before us a state, not federal, subpoena. But we see no reason why a state’s non-self-executing subpoena should be ripe for review when a federal equivalent would not be. If anything, comity should make us less willing to intervene when there is no current consequence for resisting the subpoena and the same challenges raised in the federal suit could be litigated in state court.

In this as in any context, equitable relief is only appropriate when necessary to avoid an imminent irreparable injury. Because the administrative subpoena is not ripe for review, we hold that the district court should have rejected Google’s pre-enforcement challenge.

This ruling means Hood has to make the next move. Until he does, Google cannot seek an injunction as it cannot claim imminent irreparable injury when all Hood has done to this point is be an officious pain in the ass. If he seeks legal recourse for Google's failure to comply, Google can challenge the act with an injunction. Until then, both parties can do little more than glare at each other angrily. The MPAA thinks this is a win. It's not even a tie, and the court's depiction of the events leading up to the failed injunction request are hardly favorable to Jim Hood.

Google-v-Hood-Dismissed-Remanded (PDF)Google-v-Hood-Dismissed-Remanded (Text)

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 5th circuit, injunctions, jim hood, legal process, mississippi, subpoenas
Companies: google

27 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

This comment has been flagged by the community. Click here to show it

Whatever, 11 Apr 2016 @ 8:58am

Google taking further abuse?
Yes! YES! ...Ah, I came.
[ link to this | view in chronology ]
Anonymous Coward, 11 Apr 2016 @ 9:10am

What's the deadline for Hood to make his next move?
[ link to this | view in chronology ]
TechDescartes (profile), 11 Apr 2016 @ 9:19am

Google Frowned
Hood winked.
[ link to this | view in chronology ]
Anonymous Coward, 11 Apr 2016 @ 9:22am

I think Google needs to add a "We're Not The Internet" tagline to their logo and search page.
[ link to this | view in chronology ]
- Ninja (profile), 11 Apr 2016 @ 11:11am
  
  Re:
  Google. Don't be evil. And we'd love to be the internet but, really guys, we are not.
  [ link to this | view in chronology ]
Anonymous Coward, 11 Apr 2016 @ 9:23am

google smoogle
I don't feel sorry for google.

They already play too nice with the content industries, so I hard give a shit when they have to suffer due to stupid shit like this. Think of all the people that get screwed over by google in their actions and fuck the little guy habits.
[ link to this | view in chronology ]
- Ninja (profile), 11 Apr 2016 @ 11:09am
  
  Re: google smoogle
  True enough. But even if we don't like Google we should cheer for them in this case. It's like Apple vs FBI. I don't like Apple and I'd love to see them screwed but they deserved every bit of support they had.
  [ link to this | view in chronology ]
  - Whatever (profile), 11 Apr 2016 @ 11:33am
    
    Re: Re: google smoogle
    Large, arrogant companies are nothing to cheer about. Google creates many of their own problems, so they deserve to stand in what the made.
    
    It will be very interesting if Hood happens to pry out some information that makes this all worse - even if Google gets it suppressed later.
    [ link to this | view in chronology ]
    - kallethen, 11 Apr 2016 @ 12:23pm
      
      Re: Re: Re: google smoogle
      I think you misunderstand Ninja. His point is that we shouldn't take glee from getting a smackdown if that smackdown lessens our rights.
      [ link to this | view in chronology ]
      - kallethen, 11 Apr 2016 @ 12:32pm
        
        Re: Re: Re: Re: google smoogle
        Heh, oops. That should read, "His point is that we shouldn't take glee from [insert large corporation here] getting a smackdown..." I used brackets that made it think I was using an html tag. Do'h.
        [ link to this | view in chronology ]
      - Ninja (profile), 11 Apr 2016 @ 12:36pm
        
        Re: Re: Re: Re: google smoogle
        That. He can't understand this much though.
        [ link to this | view in chronology ]
        
        Whatever (profile), 11 Apr 2016 @ 6:19pm
        
        Re: Re: Re: Re: Re: google smoogle
        I understand it - I just think that the "rights" are often not rights at all. If you took away the "on the internet" part, it's often things nobody would consider to be rights at all.
        
        I take glee in watching Google have to deal with the "rights" they have been instrumental in creating.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 11 Apr 2016 @ 6:31pm
        
        Re: Re: Re: Re: Re: Re: google smoogle
        If you took away the "on the internet" part, it's often things nobody would consider to be rights at all
        
        Hasn't stopped patent trolls.
        
        Next time you want to expound on your fetishist corporate fantasies, remember to log back in.
        [ link to this | view in chronology ]
    - JMT (profile), 11 Apr 2016 @ 7:34pm
      
      Re: Re: Re: google smoogle
      "Google creates many of their own problems, so they deserve to stand in what the made."
      
      An unsurprisingly simplistic view. The problem at hand is not of Google's making, and the behavior of Hood and the MPAA should not be tolerated no matter who the target is.
      [ link to this | view in chronology ]
Anonymous Coward, 11 Apr 2016 @ 9:37am

I'm guessing Mississippi Attorney General Jim Hood's next job will be with the MPAA (Mass Pillage of American Asses).
[ link to this | view in chronology ]
Ninja (profile), 11 Apr 2016 @ 10:33am

I'm sorry madam, unless your abusive husband actually kills you we can't issue an injunction against him even though there's plenty of evidence he is doing shady stuff around you.

Everybody surprised later when abusive husband carry on with his intentions.

Though to be fair, Hood may be a lot more careful because Google would be the wife in steroids. With heavy armor. And lasers.
[ link to this | view in chronology ]
indy31 (profile), 11 Apr 2016 @ 10:49am

I'm not a lawyer, but this article (http://www.bloombergview.com/articles/2016-04-11/court-tells-states-to-leave-google-alone-on-copyri ghts) left me with the impression that the ruling was more a procedural one and that in the long run it's still a victory for Google as the ball is now in Hood's court to put up or shut up
[ link to this | view in chronology ]
Mason Wheeler (profile), 11 Apr 2016 @ 10:56am

Strange sentence
The court similarly finds Hood's attempt to force the federal court system to resolve this (in his favor) by denying Google the right to bring its challenge of his actions to a federal court -- either at this point or at any point in the future.

Something seems to be missing here. What did the court find about Hood's attempt?
[ link to this | view in chronology ]
Anonymous Coward, 11 Apr 2016 @ 11:15am

why would anyone follow the law when those in charge seem to be able to pick and choose what laws they follow, and what laws are enforced on them.
[ link to this | view in chronology ]
Anonymous Coward, 11 Apr 2016 @ 11:52am

Silly entertainment industry, thinking they have the right to ask law enforcement for help in stopping their products from being ripped off.
[ link to this | view in chronology ]
- That One Guy (profile), 11 Apr 2016 @ 12:09pm
  
  Re:
  Yeah, maybe do a little research into the matter before commenting in the future, because this case is just a wee bit more complex than that. The MPAA was/is basically using a state AG, Hood in this case, to harass a company that they don't like, even going to far as writing at least one of 'his' letters to Google themselves.
  [ link to this | view in chronology ]
- Anonymous Coward, 11 Apr 2016 @ 1:38pm
  
  Re:
  Yawn.
  [ link to this | view in chronology ]
- Anonymous Coward, 11 Apr 2016 @ 8:23pm
  
  Re:
  If this is all it took to enforce the effects of law you wanted, why are you throwing money at the government to demand new ones?
  [ link to this | view in chronology ]
- JMT (profile), 11 Apr 2016 @ 10:12pm
  
  Re:
  But what does Google have to do with that? Please elaborate.
  [ link to this | view in chronology ]
- Anonymous Coward, 12 Apr 2016 @ 1:02pm
  
  Re:
  Silly jackass commenting on something he knows nothing about.
  [ link to this | view in chronology ]
Peter, 11 Apr 2016 @ 2:51pm

Google should leave Mississippi
I wonder how the Mississippi voters would react if Google said it was just too difficult to comply with the fishing expeditions by the AG, therefore we are suspending their search services in all IPs in Mississippi. That would get the publics attention.
[ link to this | view in chronology ]
Joel, 12 Apr 2016 @ 3:43am

Makes sense
To me it makes sense that you can only get an injunction against legal enforcement action and that it doesn't matter whether it's a state or federal. Basically against what would you get an injunction if there hasn't officialy (i.e. before the court) been any action which you prostested against.
[ link to this | view in chronology ]