Commentary

Mississippi Attorney General Fights To Keep MPAA Material Private

The courtroom showdown between Google and Mississippi Attorney General Jim Hood originally centered on whether Google would have to provide Hood with a slew of documents related to online copyright infringement by sites indexed in its search engine.

But the fight has taken a new direction. Google and Hood are now feuding over whether he must provide Google with emails and other documents that could reveal details of his office's relationship with the Motion Picture Association of America.

Three weeks ago, U.S. District Court Judge Henry Wingate in Jackson, Miss. directed Hood to turn over some information about his office's contacts with representatives of the entertainment industry, as well as drafts of subpoenas that were prepared by Mike Moore. 

Moore, a former attorney general, initially advised Wingate for free, but later was hired by the Digital Citizens Alliance -- a nonprofit funded by the movie industry -- The New York Timesreported in December.

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Hood says in a new motion filed on Wednesday that he shouldn't have to disclose draft subpoenas (or other documents) created by outside parties, including Moore, on the theory that the material was prepared for litigation. He argues that adversaries are entitled to keep material developed for litigation confidential. 

It's no secret that the entertainment industry has long blamed Google for allegedly enabling copyright infringement by displaying links to “rogue sites” in the search results. In fact, several years ago a Hollywood-backed bill, the Stop Online Piracy Act, would have made it easier to obtain orders requiring search engines to de-list sites that offered pirated material.

That measure failed. But the Motion Picture Association of America continued the fight with “Project Goliath” -- an initiative that involved enlisting state law enforcement officials in the entertainment industry's fight against online copyright infringement.

Project Goliath itself came to light as a result of last year's Sony hack. For the enterprise, the MPAA budgeted $500,000 a year toward hiring the law firm Jenner & Block, which offered legal assistance to state attorneys general -- including Hood -- who targeted Google, according to the Verge.

Late last year, days after news about Project Goliath was revealed, Google sought an injunction prohibiting Hood from attempting to enforce a subpoena for documents related to online piracy.

In March, Wingate temporarily granted Google's request. He also said that both sides could obtain evidence from the other relevant to the Google's arguments.

Wingate noted in a written ruling that Google had shown a likelihood that its free speech rights were violated by Hood. He wrote that Google's decisions about what to publish online were constitutionally protected, and that interfering with that judgment by threatening legal action “would likely produce a chilling effect on Google’s protected speech.”

Wingate also said in a written ruling that Hood lacks authority to target Google for linking to sites that allegedly infringe copyright, because state attorneys general don't have jurisdiction over copyright infringement. Hood is appealing that decision to the 5th Circuit.

It's not yet clear when that appeal will be heard, or when Wingate will rule on Hood's request to keep material confidential.

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