Mississippi Attorney General Jim Hood Withdraws Google Subpoena As Google Appeals Court Ruling

from the not-over-yet dept

Thu, Apr 28th 2016 8:31am — Mike Masnick

Earlier this month, the Fifth Circuit appeals court tossed out the lawsuit that Google had filed against Mississippi Attorney General Jim Hood, following Hood's decision to send a subpoena that was written by the MPAA's lawyers, as part of a plan by the MPAA to pay money to get state Attorneys General to attack Google.

While some in the legacy copyright world painted the ruling in the Fifth Circuit as a "victory" for Jim Hood, and a loss for Google, anyone reading the details would recognize it was anything but that. The court made it pretty clear that Hood's subpoena was ridiculous and had no chance of surviving a judicial review... but dumped the case on a procedural issue, arguing that since Jim Hood had not yet taken any action concerning Google's unwillingness to respond to parts of the subpoena, there was nothing to dispute. Basically, the court said "wait until Hood actually tries to force you to do something... and then we'll tell him his subpoena is bogus."

Google has now asked the appeals court to reconsider throwing out the case, but also reveals an interesting tidbit in the footnotes: it appears that after the ruling, Hood withdrew the entire subpoena:

If you can't read that, it says:

By letter of April 22, 2016, Hood withdrew the subpoena that Google had challenged.

That should be a pretty clear indication that this wasn't the victory some of the MPAA/Hood supporters have been claiming. Of course, Google does think it's entirely possible that Hood will issue an updated subpoena, which is part of the reason that it's asking the court to review the ruling. In a later footnote it points out that along with the withdrawal letter, Hood did warn them that the letter requiring Google to retain documents for possible litigation "remains in effect."

As for the meat of Google's petition, the company argues that the court was wrong to dump the entire lawsuit, pointing out that there were two claims in the original filing -- one for injunctive relief (i.e., blocking Hood from doing anything with the subpoena) and one for declaratory judgment (basically saying that the company was doing nothing wrong). The company says that the ruling tossing the lawsuit just referred to the injunctive relief question, not the declaratory judgment -- and further makes the argument that there was a real risk of Hood pursuing unconstitutional measures, meaning that a lawsuit for declaratory judgment is perfectly reasonable.

The panel directed the district court to dismiss the entire case as unripe because Google had not shown an “imminent threat of irreparable injury.” ... But that standard does not apply to Google’s claims for declaratory relief regarding threatened enforcement action. Under settled law, such claims “need cross only a low threshold; the Supreme Court requires no more than a ‘credible threat of prosecution,’ one that is not ‘chimerical,’ or ‘imaginary or speculative.’” .... Google met that standard. Accordingly, Google requests that the panel amend its decision to permit Google’s claims for declaratory relief regarding threatened enforcement action to proceed.

Of course, it's also possible that the court may argue that even if that's true, the whole thing is moot now that Hood has withdrawn the subpoena.

Google tries to address that as well, but I'm not convinced the court will buy it.

In addition to identifying specific conduct he deemed unlawful, Hood took concrete steps that reinforced the peril Google faces. He wrote the company’s outside counsel requesting that Google “preserve potentially relevant information that may be used as evidence in pending or reasonably foreseeable litigation.”... Hood gave a presentation to fellow attorneys general that detailed Google’s alleged wrongdoing, explained the elements of “Possible Causes of Action,” and offered theories to overcome Google’s anticipated defenses.

It's in this section that Google includes the footnote noting that Hood told the company that the preservation letter was still in effect, suggesting that he may still intend to go after Google.

Still, it looks like all the MPAA got for the hundreds of thousands of dollars it threw at this was making Mississippi's Attorney General look foolish, and showing just how far the MPAA will go to try to attack Google, rather than adapt to the internet.

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

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Filed Under: 5th circuit, declaratory judgment, free speech, jim hood, mississippi, section 230, subpoena
Companies: google, mpaa

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Anonymous Coward, 28 Apr 2016 @ 9:23am

The court made it pretty clear that Hood's subpoena was ridiculous and had no chance of surviving a judicial review... but dumped the case on a procedural issue, arguing that since Jim Hood had not yet taken any action concerning Google's unwillingness to respond to parts of the subpoena, there was nothing to dispute. Basically, the court said "wait until Hood actually tries to force you to do something... and then we'll tell him his subpoena is bogus."

That's a huge stretch. Can you point to any language in the opinion to support your claim that the Fifth Circuit thinks the subpoena is "bogus"? I sincerely doubt it. Why the need to jump to conclusions and make stuff up?
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- Anonymous Coward, 28 Apr 2016 @ 10:12am
  
  Re:
  Jim, it's over for now, simmer down.
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- Mike Masnick (profile), 28 Apr 2016 @ 10:32am
  
  Re:
  That's a huge stretch. Can you point to any language in the opinion to support your claim that the Fifth Circuit thinks the subpoena is "bogus"? I sincerely doubt it. Why the need to jump to conclusions and make stuff up?
  
  Did you read the opinion? It starts out praising Section 230 and the importance of protecting free speech online with it. Over and over again they smack down Hood as being wrong, and then finally at the end say basically "despite the fact that Hood is wrong about everything, on a procedural basis, it's not yet ripe to have a case on this." Let's begin the quoting:
  
  https://assets.documentcloud.org/documents/2798106/Google-v-Hood-Dismissed-Remanded.pdf
  
  This lawsuit, like others of late, reminds us of the importance of preserving free speech on the internet, even though that medium serves as a conduit for much that is distasteful or unlawful. See Backpage.com, LLC v. Dart, 807 F.3d 229 (7th Cir. 2015) (holding unconstitutional a sheriff’s threats to credit card companies to stop doing business with a website that hosts classified ads for prostitution). Also like other recent litigation, this case implicates section 230 of the Communications Decency Act—Congress’s grant of “broad immunity” to internet service providers “for all claims stemming from their publication of information created by third parties,” which we and other circuits have consistently given a wide scope. Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008); see also Doe v. Backpage.com, LLC, --- F.3d ---, 2016 WL 963848, at *3–9, 14 (1st Cir. Mar. 14, 2016) (affirming dismissal based on section 230 despite appellants’ “persuasive case” that the defendant “tailored its website to make sex trafficking easier” and stating: “If the evils that the appellants have identified are deemed to outweigh the First Amendment values that drive the CDA, the remedy is through legislation, not through litigation.”).
  
  And...
  
  We first reject Hood’s contention that we can resolve this case on the simple ground that the district court lacked federal-question jurisdiction.
  
  And...
  
  Hood protests that Google really presents only artfully pleaded anticipated defenses to a future state-law action—but he is wrong...
  
  And...
  
  Here, we cannot agree with Hood that an executive official’s service of a non-self-executing subpoena creates an “ongoing state judicial proceeding.”
  
  And thus:
  
  Despite the foregoing, our precedents lead us to conclude that this administrative subpoena was not ripe for adjudication by the district court.
  
  You kind have to be willfully blind... or working for a Hollywood funded think tank... to think that the court isn't ready to smack Hood down.
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  - Anonymous Coward, 28 Apr 2016 @ 1:07pm
    
    Re: Re:
    Wowza. Your ability to misread things is epic. Let's go through them one-by-one.
    
    This lawsuit, like others of late, reminds us of the importance of preserving free speech on the internet, even though that medium serves as a conduit for much that is distasteful or unlawful.
    
    Yep, free speech is important. So what? That doesn't mean that Google is not violating state consumer protection law. See the $500 million settlement and get-out-of-jail-free deal Google cut for reference. Totally irrelevant to the question about violating state consumer protection law.
    
    We first reject Hood’s contention that we can resolve this case on the simple ground that the district court lacked federal-question jurisdiction.
    
    Yep, the court rejected Hood's argument about federal question jurisdiction. Totally irrelevant to the question about violating state consumer protection law.
    
    Hood protests that Google really presents only artfully pleaded anticipated defenses to a future state-law action—but he is wrong...
    
    Yep, the court again rejected Hood's argument about federal question jurisdiction. Totally irrelevant to the question about violating state consumer protection law.
    
    Here, we cannot agree with Hood that an executive official’s service of a non-self-executing subpoena creates an “ongoing state judicial proceeding.”
    
    Yep, the court yet again rejected Hood's argument about federal question jurisdiction. Totally irrelevant to the question about violating state consumer protection law.
    
    Despite the foregoing, our precedents lead us to conclude that this administrative subpoena was not ripe for adjudication by the district court.
    
    Yep, the court yet again rejected Hood's argument about federal question jurisdiction. And it rejected his argument about Younger abstention. Totally irrelevant to the question about violating state consumer protection law.
    
    So all you've got are the court stressing the importance of free speech and rejecting Hood's procedural arguments. NONE OF THAT SHOWS THE COURT INDICATING THAT THE SUBPOENA IS "BOGUS."
    
    Try again? Let's see where the court says the subpoena is "bogus." Hint, it's discussion of jurisdiction and procedure doesn't fit the bill.
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    - Anonymous Coward, 28 Apr 2016 @ 1:18pm
      
      Re: Re: Re:
      Keep trying, bud. You aren't going to convince people.
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  - Anonymous Coward, 28 Apr 2016 @ 1:10pm
    
    Re: Re:
    You kind have to be willfully blind... or working for a Hollywood funded think tank... to think that the court isn't ready to smack Hood down.
    
    By the way, I love how you resort to weird ad hominem attacks. Let's stick to the merits, Mike!
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    - Anonymous Coward, 28 Apr 2016 @ 1:18pm
      
      Re: Re: Re:
      Like you have any merits to stick to. Otherwise you'd bring a name to the table, eh?
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    - Mike Masnick (profile), 28 Apr 2016 @ 3:16pm
      
      Re: Re: Re:
      By the way, I love how you resort to weird ad hominem attacks.
      
      Only for you skippy. And let's be clear, if anyone here is a fan of ad hominem attacks, it's you.
      
      Also, learn what an ad hominem is. Because my statement was not one.
      
      But I stand by my post. The court was dripping for contempt with Hood's arguments, and highlighted how Section 230 likely protected Google, but that this was too early to review that.
      
      I think the fact that Hood dropped the subpoena kinda suggests he knows that too. But, if you're in denial...
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      - Anonymous Coward, 29 Apr 2016 @ 7:06am
        
        Re: Re: Re: Re:
        But I stand by my post. The court was dripping for contempt with Hood's arguments, and highlighted how Section 230 likely protected Google, but that this was too early to review that.
        
        You were quoting sections of the opinion where the court rejected Hood's procedural arguments about the federal courts having jurisdiction. How does that show contempt for the underlying subpoena? It doesn't. And the fact that you quoted them as evidence that the court didn't like the subpoena shows that you're not good at understanding what you read. Besides, the court ordered the entire case dismissed, agreeing 100% with Hood that it was premature.
        
        As far as Section 230, you're completely ignoring the FACT that many of the questions in the subpoena were directed at Google's OWN CONDUCT, not the conduct of third parties. Your reporting on this has completely ignored this FACT. For whatever reason, you ignore the nuance and jump straight to Section 230--which does not apply to everything in the subpoena.
        
        Can you respond to this on the merits? I'm happy to quote exact text from the subpoena if you deny it exists. No need to stand your ground on this. It's OK to admit FACTS. But something tells me that you will never admit this simple FACT. It's not your style, as far as I can tell.
        
        I think the fact that Hood dropped the subpoena kinda suggests he knows that too. But, if you're in denial...
        
        It's not denial. Unlike you, I admit that I have NO IDEA why Hood dropped the subpoena. You, on the other hand, are jumping to conclusions. Can't you admit that you don't know either? Or is this also a FACT you can't admit? Again, I have no doubt that you'll admit it.
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        Mike Masnick (profile), 29 Apr 2016 @ 7:35am
        
        Re: Re: Re: Re: Re:
        As far as Section 230, you're completely ignoring the FACT that many of the questions in the subpoena were directed at Google's OWN CONDUCT, not the conduct of third parties. Your reporting on this has completely ignored this FACT. For whatever reason, you ignore the nuance and jump straight to Section 230--which does not apply to everything in the subpoena.
        
        The district court ruling says... you're wrong. Or are you going to whine that the district court refused to discuss this "on the merits" or "the facts" too?
        
        The district court didn't say that those elements of the subpoena could go forward. It issued an injunction across the board and noted, properly, that "the Attorney
        General issued the subpoena in retaliation for Google’s likely protected speech, namely
        its publication of content created by third-parties."
        
        I love how you get so upset when the basic facts prove you're wrong and you HATE that I am right.
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        Anonymous Coward, 29 Apr 2016 @ 9:55am
        
        Re: Re: Re: Re: Re: Re:
        The district court ruling says... you're wrong. Or are you going to whine that the district court refused to discuss this "on the merits" or "the facts" too?
        
        The district court didn't say that those elements of the subpoena could go forward. It issued an injunction across the board and noted, properly, that "the Attorney
        General issued the subpoena in retaliation for Google’s likely protected speech, namely
        its publication of content created by third-parties."
        
        I love how you get so upset when the basic facts prove you're wrong and you HATE that I am right.
        
        Don't declare victory just yet, Mike. I know you like to jump to conclusions, but I like nuanced details. If you can prove me wrong, I'll gladly admit it. Will you?
        
        Yes, the district court did not let any part of the subpoena go forward, but that doesn't mean that all of it was directed at conduct that Section 230 would preempt, i.e., conduct by third parties.
        
        Here's the paragraph you're quoting:
        Additionally, it is well-settled that the Attorney General may not retaliate against Google for exercising its right to freedom of speech by prosecuting, threatening prosecution, and conducting bad-faith investigations against Google. See Izen v. Catalina, 398 F.3d 363, 367 (5th Cir.2005) (citing Smith v. Plati, 258 F.3d 1167, 1176 (10th Cir.2001) (quoting Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir.2000))). As explained supra, Google has submitted competent evidence showing that the Attorney General issued the subpoena in retaliation for Google's likely protected speech, namely its publication of content created by third-parties. Given the gravity of the rights asserted herein, the court finds it appropriate to enjoin further action on behalf of the Attorney General until a determination on the merits of Google's claims is made.
        Google, Inc. v. Hood, 96 F. Supp. 3d 584, 598 (S.D. Miss. 2015).
        
        All the district court is saying is that Google is likely to succeed in showing that the Attorney General retaliated against Google's protected speech, NOT that every single thing in the subpoena involved protected speech. Nuance!
        
        But we can go right to the source, i.e., the subpoena: https://musictechpolicy.files.wordpress.com/2010/09/google-subpoena-from-mississippi-2.pdf
        
        You'll note that MANY of the questions are directed to GOOGLE'S OWN CONDUCT:
        Interrogatories 1-2: General questions to Google.
        
        Interrogatories 3-6: Questions about Google's non-prosecution agreement.
        
        Document Requests 1-9: Documents related to Google's non-prosecution agreement.
        
        Interrogatories 7-14: Questions about Google's own advertising practices.
        
        Document Requests 10-36: Documents related to Google's own advertising practices.
        I can go on and on. Have you read the subpoena? It's NOT all about third parties. It's about Google's own actions too.
        
        In your reporting, you've made it sound like everything would be preempted by some federal law (Copyright Act, Section 230, Constitution), but that's NOT what the district court held, and it's simply not true. And just because the district court enjoined the the subpoena for likely being retaliatory, that doesn't mean that everything in the subpoena was directed to protected speech. Again, nuance!
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        This comment has been flagged by the community. Click here to show it
        
        Anonymous Coward, 29 Apr 2016 @ 8:03pm
        
        Re: Re: Re: Re: Re: Re: Re:
        Mike's silence says it all. Good work, my friend.
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        Mike Masnick (profile), 30 Apr 2016 @ 1:24am
        
        Re: Re: Re: Re: Re: Re: Re:
        Yes, the district court did not let any part of the subpoena go forward, but that doesn't mean that all of it was directed at conduct that Section 230 would preempt, i.e., conduct by third parties.
        
        You're right. But, you know, also wrong. Not ALL of the subpoena is preempted by Section 230. The rest is preempted for other reasons.
        
        The court *also* found that parts were preempted by the 4th Amendment:
        
        this court also finds that Google’s Fourth Amendment claim regarding the
        overbreadth of the subpoena in question has substantial merit
        
        And then parts are preempted by federal copyright law:
        
        Moreover, the court is persuaded that Google is also likely to succeed on its
        preemption claims. Here, Google avers that the Federal Copyright Act, including the
        DMCA, preempts a large part of the subpoena. The subpoena contains various
        requests for information regarding copyright infringement. Many of these requests are
        found in a section titled “Stolen Intellectual Property”. It is well-established that state
        attorneys lack the authority to enforce the Copyright Act; such enforcement power lies with the federal government....
        
        The court is not persuaded that the Attorney
        General’s posited theoretical basis for making these requests is sufficient for the
        purpose of rebutting Google’s preemption allegation.
        
        Oh and then also by the FDCA.
        
        There's a *reason* why the court blocked the entire subpoena. And it's because all of it was ridiculous. You're right that I focused on the Section 230 stuff, because that's the majority of the important points, but Hood's entire subpoena was a loser here.
        
        But, really, is this really the hill you want to die on defending? You're looking mighty ridiculous defending Hood here.
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        Anonymous Coward, 3 May 2016 @ 7:39am
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        Sorry for the delayed response. I've been on vacation.
        
        You're right. But, you know, also wrong. Not ALL of the subpoena is preempted by Section 230. The rest is preempted for other reasons.
        
        Two things: (1) The court didn't find that anything was actually preempted. The procedural posture was a TRO and preliminary injunction, and the issue is likelihood of success, not success. (2) The court did not say that each and every Interrogatory and Document Request was preempted. For example, nowhere did the court say that the questions and documents to Google's own advertising practices would be preempted.
        
        There's a *reason* why the court blocked the entire subpoena. And it's because all of it was ridiculous. You're right that I focused on the Section 230 stuff, because that's the majority of the important points, but Hood's entire subpoena was a loser here.
        
        I think the finding of likely retaliation, the finding that many questions and document requests were based on theories that were likely preempted, and the desire to maintain the status quo pending determination of the merits is why the court granted the injunction.
        
        But, really, is this really the hill you want to die on defending? You're looking mighty ridiculous defending Hood here.
        
        That's a silly thing to say. I'm not defending Hood. I'm discussing the merits of the district court and Fifth Circuit's opinions. I have no idea why Hood withdrew the subpoena. If I had to guess, it's because he's narrowing it down to the issues that aren't likely preempted and will send it again. The AG can investigate violations of state laws. If he thinks there's a violation here, then I support him investigating it. I don't know if there is a violation, and neither do you.
        
        Which reminds me: I started out by challenging your claim that the Fifth Circuit indicated that the subpoena was bogus. When asked for textual evidence of this, you quoted several lines where the court rejected Hood's arguments about the federal courts even having jurisdiction. Can we go back to that? The reason I chimed in is because I read the Fifth Circuit's opinion closely, and it explicitly declines to discuss the merits of the subpoena. That's why I think it's weird you read it otherwise.
        
        I think you're reading into it more than you should be. And the fact that you still haven't pointed to anything to back up your claim--while pointing to things that don't back up your claim--pretty much says it all. You're jumping to conclusions, I called you out, and you can't admit it.
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        Anonymous Coward, 30 Sep 2018 @ 10:57pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Two years later and nothing. Guess Hood lost his usefulness as a proxy once Sesta and Article 13 went up!
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        Anonymous Coward, 6 Jan 2019 @ 12:57pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        just some info
        https://courts.ms.gov/?cn=87238#dispArea
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    - Anonymous Coward, 28 Apr 2016 @ 3:20pm
      
      Re: Re: Re:
      Strike three, you're out. Try again next time b.
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    - JMT (profile), 28 Apr 2016 @ 5:31pm
      
      Re: Re: Re:
      Out of curiosity, are you willfully blind, working for a Hollywood funded think tank, or both?
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    - Whatever, 28 Apr 2016 @ 5:43pm
      
      Re: Re: Re:
      Your babies! Give me your babies! I want you to own the copyright on my ass for my life plus seventy years!
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DCL, 28 Apr 2016 @ 9:25am

Can somebody explain...
How the actions of the Hood and the MPAA are not illegal... it seems that a private party giving the government money for pursuing a case is a bastardization of "justice" and only a step away from bribery.

Full disclosure... I was so disgusted at the idea I didn't read all the details.

-DCL
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Anonymous Coward, 28 Apr 2016 @ 9:29am

The MPAA do not want to adapt to the Internet, as it means they have to publicly admit that they do not have total control over the production and distribution of movies. They want to destroy the Internet so that they have total control over the production and distribution of movies.
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- Anonymous Coward, 28 Apr 2016 @ 1:20pm
  
  Re:
  They'd have better luck trying to convince North korea the kims aren't immortal.
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Anonymous Coward, 28 Apr 2016 @ 9:49am

To be honest, I myself would toss a couple of bucks into the pot if it would help Mississippi's Attorney General look foolish...but I think he's doing fine all by himself.
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That Anonymous Coward (profile), 28 Apr 2016 @ 2:00pm

Pity the people of Mississippi aren't paying enough attention to these things. Instead of taking care of actual problems facing the citizens he sold his office to the highest outside bidder and wasted their tax dollars on tilting at windmills. He will finally leave office and probably get a cushy job with those who bought his influence, so that he can attempt to corrupt other officials to putting the desires of a few ahead of those of the citizens.
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Kronomex, 28 Apr 2016 @ 4:01pm

I'm surprised that Hood is even tall enough to look at the real world while being in the pocket of the MPAA. Oohh, I just realised that he just stands on the latest wad of graft...I mean donations...from them as he regurgitates the prepared statements from the lobbysits.
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Anonymous Coward, 29 Apr 2016 @ 8:17am

Whatever and antidirt just hate it when due process is enforced.
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Anonymous Coward, 29 Apr 2016 @ 11:42am

Mike Masnick just loves it when the giant corporation Google isn't punished for its crimes.
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- Anonymous Coward, 2 May 2016 @ 11:10pm
  
  Re:
  Enjoying your DMCA vote? Your dominatrix masters paid for it! Money well spent, right?
  
  Just don't sit down for a week or two unless anal aching is your thing. ...Come to think of it, it probably is!
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