Google, Inc. v. Hood

• Decision Date: 18 May 2016
• Docket Number: No. 15–60205.,15–60205.
• Citation: 118 U.S.P.Q.2d 1277,822 F.3d 212
• Parties: GOOGLE, INCORPORATED, Plaintiff–Appellee v. James M. HOOD, III, Attorney General of the State of Mississippi, in his official capacity, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

822 F.3d 212

118 U.S.P.Q.2d 1277

GOOGLE, INCORPORATED, Plaintiff–Appellee

v.James M. HOOD, III, Attorney General of the State of Mississippi, in his official capacity, Defendant–Appellant.

No. 15–60205.

United States Court of Appeals, Fifth Circuit.

May 18, 2016.

Fred H. Krutz, III, Daniel J. Mulholland, Esq., Forman Watkins & Krutz, L.L.P, Jackson, MS, Peter Gillies Neiman (argued), Christopher Bouchoux, WilmerHale, New York, NY, Christopher W. Johnstone, Esq., WilmerHale, Palo Alto, CA, Blake Roberts, WilmerHale, Washington, DC, Sean Fletcher Rommel, Wyly Rommel, P.L.L.C., Texarkana, TX, for Plaintiff–Appellee.

Douglas T. Miracle, Assistant Attorney General (argued), Krissy C. Nobile, Esq., Office of the Attorney General for the State of Mississippi, Jackson, MS, John Wimberly Kitchens, Kitchens Law Firm, P.A., Crystal Springs, MS, F. Jerome Tapley, Esq., Cory Watson, P.C., Birmingham, AL, for Defendant–Appellant.

Paul D. Clement (argued), Viet Dong Dinh, Jeffrey Matthew Harris, Bancroft, P.L.L.C., Washington, DC, for Digital Citizens Alliance Amicus Curiae; Taylor Hooton Foundation amicus curiae; Ryan United amicus curiae.

Esha Bhandari, Samia Akther Hossain, American Civil Liberties Union Foundation of New York, New York, NY, for American Civil Liberties Union amicus curiae.

Charles Baron Irvin, Esq., American Civil Liberties Union of Mississippi, Jackson, MS, for American Civil Liberties Union Of Mississippi, Incorporated amicus curiae.

Jonathan Band, Washington, DC, for Computer & Communications Industry Association Amicus Curiae; Engine Amicus Curiae; Consumer Electronics Association amicus curiae.

Stacie Lambert deBlieux, Esq., Assistant Attorney General, Office of the Attorney General for the State of Louisiana, Baton Rouge, LA, for State of Louisiana amicus curiae; State of Massachusetts amicus curiae; State of Pennsylvania amicus curiae; State of Arizona amicus curiae; State of Alabama amicus curiae; State of Alaska amicus curiae; State of Arkansas amicus curiae; State of Colorado amicus curiae; State of Connecticut amicus curiae; State of Florida amicus curiae; State of Georgia amicus curiae; State of Idaho amicus curiae; State of Illinois amicus curiae; State of Indiana amicus curiae; State of Iowa amicus curiae; State of Kansas amicus curiae; State of Maine amicus curiae; State of Maryland amicus curiae; State of Michigan; amicus curiae; State of Minnesota amicus curiae; State of Missouri amicus curiae; State of Montana amicus curiae; State of Nevada; amicus curiae; State of New Hampshire amicus curiae; State of New Jersey amicus curiae; State of New York amicus curiae; State of North Dakota amicus curiae; State of Oklahoma amicus curiae; State of Oregon amicus curiae; State of Rhode Island amicus curiae; State of South Carolina amicus curiae; State of South Dakota amicus curiae; State of Tennessee amicus curiae; State of Utah; amicus curiae; State of Vermont; amicus curiae; State of Washington amicus curiae; State of West Virginia amicus curiae; State of Wisconsin amicus curiae, State of District of Columbia amicus curiae.

Hanni Meena Fakhoury, Esq., Mitchell Stoltz, Electronic Frontier Foundation, San Francisco, CA, for Electronic Frontier Foundation amicus curiae; Center for Democracy and Technology amicus curiae; New America's Open Technology Institute amicus curiae; Public Knowledge amicus curiae; R Street Institute amicus curiae.

Appeals from the United States District Court for the Southern District of Mississippi.

Before STEWART, Chief Judge, KING and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON

, Circuit Judge:

In response to Google's petition for panel rehearing, the opinion of the court issued on April 8, 2016, at 2016 WL 1397765

, is withdrawn, and the following is substituted. The petition for rehearing is otherwise DENIED.

Mississippi's Attorney General, James M. Hood III, believes that internet giant Google may be liable under state law for facilitating dangerous and unlawful activity through its online platforms. Hood's conflict with Google culminated in his issuance of a broad administrative subpoena, which Google challenged in federal court. The district court granted a preliminary injunction prohibiting Hood from (1) enforcing the administrative subpoena or (2) bringing any civil or criminal action against Google “for making accessible third-party content to internet users.” Hood appeals, arguing that the district court should have dismissed Google's suit on a number of threshold grounds, and in any event erred in granting injunctive relief. Expressing no opinion on the merits, we vacate the injunction.

I.

This dispute concerns the adequacy of Google's efforts to police the technology services it provides to tens of millions of people every day.

A.

Google's leading internet search engine processes over 3.5 billion searches per day, finding webpages responsive to users' queries through an algorithmic review of billions of pages selected from over 60 trillion indexed pages.¹ Google also operates YouTube, a popular platform for uploading and viewing videos to which nearly 300 new hours of content are added every minute. Both services feature Google's “Autocomplete” function, which uses an algorithm based on prior search activity and the content of indexed pages to predict a query as it is typed. This feature, according to Google, is intended to save time and correct common misspellings. The user may select one of the suggested queries to run a search, or ignore the suggestions and keep typing.

Google earns revenue through services called AdWords, which places third-party advertisements alongside search results and YouTube videos, and AdSense, which allows third-party websites to host advertisements generated through AdWords. Over 40 million AdWords advertisements are created each day. The order in which they appear to users depends on, among other factors, how much the advertiser pays and the “quality” of the advertisements and linked websites.

Although the vast majority of the content users find through Google's services is produced by third parties, Google takes measures to weed out illegal material. For example, when Google receives a valid “takedown notice” from a copyright owner about a webpage containing unauthorized material, or when a court rules content unlawful, Google removes the offending page from its search results. In 2013 alone, Google removed 222 million pages from its search results as a result of takedown notices. Though it generally does not remove whole sites on the basis of infringing pages, Google “incorporates” copyright removal notices as a negative factor in the search algorithm it uses to rank sites. The company also removes from its search results limited content such as personal financial information and images showing sexual abuse of children. And Google blocks predictive Autocomplete queries for narrow “cases of potentially shocking or offensive entries (e.g., hate speech) and in cases where there is a high correlation between particular terms and infringing copyright.”²

Videos that violate YouTube's terms and conditions can be removed in several ways. Users can flag videos, which are then reviewed and, if they violate Google's guidelines, taken down. Google also removes videos in response to valid legal complaints and uses computer models to identify large-scale policy violations. Additionally, a system called Content ID allows copyright owners to “identify and manage their content on YouTube” by sending YouTube a database of copyrighted files. When a newly uploaded video matches such a file, the copyright owner can choose to mute, block, monetize, or track that video. User accounts can be terminated for egregious or repeated violations.

Google's AdWords policies prohibit advertising for, among other things, counterfeit goods, “dangerous products or services” including recreational drugs and weapons, “products that are designed to enable dishonest behavior” such as hacking software, and hate-promoting or otherwise “offensive or inappropriate content.” Google restricts (but does not prohibit) advertising for “adult-oriented content,” alcoholic beverages, intellectual-property-violative material, and healthcare-related content (including over-the-counter and prescription medication). In 2014, Google rejected over 428 million advertisements and suspended or terminated over 900,000 advertiser accounts for AdWords policy violations. Similar policies govern AdSense.

B.

In late 2012 and early 2013, Hood and other state attorneys general began expressing concern that search engines were not doing enough to combat copyright infringement, the sale of prescription drugs and counterfeit products, and other “illegal and harmful” activity on the internet. In April 2013, Hood's office wrote to Google about these topics, alleging that the company had inadequately responded to previous requests for information, showing an “unwillingness to make meaningful reforms” and “a lack of commitment to making the Internet a safe place for families and commerce.” Hood complained that, among other things, children were “able to purchase drugs without a prescription through Google,” and that “sites peddling counterfeit and pirated goods are still appearing at the top of” search results. Hood expressed a desire to meet with Google to develop solutions, but warned that “if voluntary actions will not suffice, we will take legal action.” As it had before, Google responded, highlighting its existing efforts to counter illegal activity online and explaining why, in its view, more severe measures were inappropriate.

Friction between the parties escalated. In May 2013, Hood threatened that if the company did not “provide adequate answers,” he would urge his fellow attorneys general to issue civil investigative demands (subpoenas) to the company. He also demanded a “24–hour link” through which requests by attorneys general to remove webpages from Google's searchable index would be “granted or addressed...