Copyright questions.

Photographer: Jason Alden/Bloomberg

Court Tells States to Leave Google Alone

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Google just scored a win by losing a Mississippi case. On the surface, a Friday ruling by a federal appeals court appears to support a campaign by that state’s attorney general to hold the Internet titan accountable for copyright infringement.

Look again. On a close reading, the court’s opinion is promising for Google and doesn’t bode well for Attorney General James Hood III’s aggressive enforcement actions. The company had initially lucked into a very sympathetic federal district court judge who issued an injunction to block the attorney general. Now, by ruling against Google and reversing the injunction, the more cautiously sympathetic U.S. Court of Appeals for the Fifth Circuit has set the lower court right.

You need to go back to the core of the question to understand why this favors Google. The background of the case, which the court never mentioned but certainly must have known about, is the efforts by many state attorneys general to go after Google for posting copyright-infringing content. Hood was an active participant, pressing Google extensively in 2013. These apparently coordinated actions, driven at least partly by the Motion Picture Association of America, were revealed when Sony’s files were hacked and leaked in 2014.

In November 2014, Hood issued what’s called an “administrative subpoena” against Google. Such a subpoena under Mississippi law demands information, and Hood doesn’t need a court to issue it.

Hood’s subpoena said that Google was suspected of violating Mississippi’s Consumer Protection Act. Running to 79 pages, it demanded in extremely broad terms that Google produce documentation on all potential law violations connected with its operations. When you consider that Google blocked some 180 million videos in the year 2014 alone, you can get some sense of the near-impossibility of fulfilling the terms of the subpoena without enormous effort and cost.

The catch is that the attorney general can issue the subpoena, but he can’t enforce it on his own. For enforcement, Hood needs a state court to agree with the request and its breadth.

To send a message to Hood, Google didn’t wait for that. Instead it asked a federal district court for an injunction to block the subpoena and any subsequent litigation against the company, civil or criminal, related to posting third-party content. Google’s core claim was that the federal Communications Decency Act, through its safe harbor provisions, protects it from any legal action resulting from its role as a publisher posting content provided by third parties. That federal law, it asserted, preempts any action by Mississippi. The company also argued that a suit would infringe Google’s First Amendment rights.

The federal district court bought the argument and issued the injunction -- an extraordinary and, in retrospect, overly aggressive step. A unanimous Fifth Circuit panel threw the injunction out.

Although that sounds like a win for Hood and a loss for Google, it really wasn’t. Rather, the appellate court’s decision was just a correction of the district court’s overreach. Deep in the legal weeds, the Fifth Circuit made it pretty clear that Hood’s efforts aren’t going anywhere.

For one thing, it said that the federal court’s injunction had been premature (“unripe” in legal jargon) because Hood hadn’t yet taken the step of asking a Mississippi court to enforce the subpoena. Logically, then, the court could simply reapply the injunction if Hood does seek enforcement -- which now he may not bother to do. In essence, the Fifth Circuit called Hood’s bluff, daring him to try to get a Mississippi court to flout federal law.

With respect to future civil or criminal charges, the appellate court again said only that the injunction came too soon -- not that it wouldn’t be warranted in the future. It made clear that an injunction could be issued the moment the attorney general gives notice that he intends to sue or prosecute.

The effect of this ruling is to create a substantial disincentive for Hood’s office to do the work necessary to reach the stage of litigation. If the attorney general goes forward, he will almost certainly be blocked before he can actually file suit against Google.

Along the way, the appeals court resolved another potentially pesky issue in favor of Google. It held that, in case of a suit, Google would be permitted to go straight to federal court to seek an injunction because its claim that federal law preempts state action would be appropriate for a federal district court. Google could rely on this tailor-made holding should Hood proceed.

The upshot is that Google got just about everything it could’ve wanted from this decision -- except a headline saying that the court decided in its favor. Practically speaking, it won’t have to comply with the administrative subpoena unless a Mississippi court gets involved; and if that happens, the federal district court will likely be stopped by an injunction, which the Fifth Circuit will then uphold.

Behold the mysteries of the legal subfield known as the study of federal jurisdiction. It’s one of the most technical areas of the law, the preserve of egghead intellectual lawyers, professors and judges. I can hardly think of any topic less well-suited to being captured in simple journalistic summaries. But federal jurisdiction is a big part of how real-world courts do their job -- and in this case, it makes all the difference.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Susan Warren at susanwarren@bloomberg.net