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

from the not-over-yet dept

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

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.

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.

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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...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,If you can't read that, it says: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.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.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.

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

Companies: google, mpaa