Google on Friday asked a federal judge to
prohibit Mississippi Attorney General Jim Hood from following through on a threat to sue the company for enabling Web users to access “illegal” content.
Google also is asking for
an injunction prohibiting Hood from enforcing a subpoena demanding information relating to outside companies -- including operators of sites that Google indexes in its search engine -- that allegedly
play a role in copyright infringement.
“If 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 says in a request for a temporary restraining order
filed Friday in U.S. District Court for the Southern District of Mississippi. “They would instead have to pre-screen the trillions of Web sites and millions of videos on the Internet blocking
anything they had not yet reviewed from being publicly accessible so as to avoid the ire of even a single state or local regulator.
The dispute appears to stem from accusations that Google
enables piracy through its search engine and also on YouTube. Google allegedly indexes sites where users can find infringing material and also allegedly enables users to upload infringing material on
YouTube.
Google says in its complaint that Hood has spent the last 18 months threatening to sue the company, or even prosecute it criminally, unless it blocks “objectionable”
content created by consumers or outside companies.
Google says that when it didn't agree, Hood retaliated by issuing an “enormously burdensome” subpoena that requires Google to
produce “millions” of documents.
“The subpoena demands extensive information about 'illegal content,' which the subpoena defines as not just content that violates Mississippi
law, but also 'any information that .. has indicia that it could, either directly, indirectly or tangentially, promote, facilitate, encourage, aid or abet activity that could be in violation of any
criminal or civil law.”
Hood allegedly pegged his subpoena to accusations that Google violated Mississippi's consumer protection law, which prohibits businesses from engaging in
deceptive and unfair trade practices.
But Google says in its legal papers that the federal Communications Decency Act provides that companies like itself are immune from liability for
violating state laws by making available content created by others.
Google's legal papers incorporate revelations that came to light through the Sony hack, including “Project
Goliath” -- the reported code name for a Hollywood initiative to persuade state attorneys general to target Google for allegedly enabling piracy. That campaign appears to grow out of Hollywood's
failed attempt to convince Congress to pass the Stop Online Piracy Act, which
would have made it easier for courts to order search engines to remove links to so-called “rogue” sites.
Google refers in its complaint to a letter signed by Hood -- but reportedly
authored by a lawyer who represents the Motion Picture Association of America -- that accuses the company of profiting from illegal activity.
“The Attorney General has been particularly
focused on Web sites containing infringing content protected by copyright,” Google says, adding that Hood has demanded that the company promote Hollywood-endorsed sites and also “display
an icon alongside such favored sites in its results.”
Google isn't the only Web company to clash in court with a state Attorney General. For instance, in 2010, Craigslist sued South
Carolina Attorney General Henry McMaster for threatening to prosecute company executives for abetting prostitution by allowing users to post adult ads. After the lawsuit was filed, McMaster agreed
that he wouldn't sue while the matter was pending. Craigslist later dropped its adult listings and a court dismissed the lawsuit, ruling that the possibility of prosecution was remote.
Google's
decision to sue Hook suggests the company wants to “control the battle by taking the fight to their opponents, rather than just absorbing punches,” says Santa Clara University law
professor Eric Goldman.
“This is Google taking the gloves off and coming out swinging,” he says. “Google has the muscle and resources to swing pretty hard, but all Internet
companies are probably cheering, because all of them wish they could slug back against the overreaches by various state attorneys general.”