Corporate Purchase of the Criminal Justice System: MPAA Edition

It appears that Google is involved in a pissing contest with the Mississippi Attorney General .

It appears that the latter is doing a cut and paste of MPAA legal filing.

Thankfully, the Sony hack has revealed these machinations:

Tensions between Google and Mississippi Attorney General Jim Hood exploded into public view this week, as Google filed court papers seeking to halt a broad subpoena Hood sent to the company.

The Hood subpoena, delivered in late October, didn't come out of nowhere. Hood's investigation got revved up after at least a year of intense lobbying by the Motion Picture Association of America (MPAA). E-mails that hackers acquired from Sony Pictures executives and then dumped publicly now show the inner workings of how that lobbying advanced—and just how extensive it was. Attorneys at Sony were on a short list of top Hollywood lawyers frequently updated about the MPAA's "Attorney General Project," along with those at Disney, Warner Brothers, 21st Century Fox, NBC Universal, and Paramount.

The e-mails show a staggering level of access to, and influence over, elected officials. The MPAA's single-minded obsession: altering search results and other products (such as "autocompleted" search queries) from Google, a company the movie studios began referring to as "Goliath" in around February 2014. The studios' goal was to quickly get pirated content off the Web; unhappy about the state of Google's voluntary compliance with their demands and frustrated in their efforts at passing new federal law such as SOPA and PIPA, the MPAA has turned instead to state law enforcement.

The most controversial elements of SOPA/PIPA would have let content owners effectively shut down websites they said were infringing their copyrights or trademarks. This already happens—think of various peer-to-peer sites that no longer exist—but it usually involves drawn-out litigation. SOPA promised a faster-moving process that would have essentially made rights holders a website's judge, jury, and executioner.

To get the same results in a post-SOPA world, MPAA has hired some of the nation's most well-connected lawyers. The project is spearheaded by Thomas Perrelli, a Jenner & Block partner and former Obama Administration lawyer. Perrelli has given attorneys general (AGs) across the country their talking points, suggesting realistic "asks" prior to key meetings with Google. Frustrated with a lack of results, Perrelli and top MPAA lawyers then authorized an "expanded Goliath strategy" in which they would push the AGs to move beyond mere letter writing. Instead, they would seek full-bore investigations against Google.

If the AGs felt short on resources—well, Hollywood studios could help with that. Money from Sony and other Big Six studios was available to draft the actual subpoenas, to research legal theories to prosecute Google, to spread negative press about the search giant, and to reach out to other state AGs that might join with Hood.

………

One chain of e-mails among the MPAA and studio lawyers bears the subject line "STATE ATTORNEY GENERAL PROJECT" and focuses on how Google could be pressured into altering its search results, demoting or removing so-called "rogue sites" that host high levels of copyrighted context.

Most notes on the project came from Vans Stevenson, the MPAA's VP of state legislative affairs; higher-level updates were written by MPAA general counsel Steven Fabrizio or took the form of memos written by Perrelli. Most information about the AG project was shared with a group of more than 30 lawyers, including several from the MPAA and RIAA, as well as each of the six big studios, but some were kept to just general counsels and their immediate confidantes.

"[Attorney] General Hood told me by e-mail today that his conversation 'with Google’s General Counsel did not go well,' and therefore he followed up with the letter that was sent yesterday," Vans Stevenson informed the group in November 2013. "Hood also said he was organizing a meeting during the NAAG [National Association of Attorneys General] meeting next week in New Orleans with his outside counsel Mike Moore, former MS Attorney General. Also attending that meeting will be MPAA/RIAA outside counsel Tom Perrelli and others, 'so we can discuss the next move,' Hood wrote.... I will keep you advised of further developments."

The e-mail includes a letter from Hood to Google general counsel Kent Walker. It was published earlier this week by The New York Times, which reported that most of the letter was actually written by Perrelli's law firm.

(emphasis mine)

Google counter-sued, which has the AG Hood calling for a timeout:

It appears that Mississippi Attorney General Jim Hood is making a strategic retreat in the wake of publicity about his investigation of Google.

On Friday morning, Google sued Hood, saying that a 79-page subpoena he had sent to the company was "punitive," and violated Google's First and Fourth Amendment rights. The company also pointed to recent press reports that showed Hollywood studios had lobbied heavily for the investigation.

Later that day, Hood sent a statement to The New York Times saying that he's "calling a time out, so that cooler heads may prevail." Hood says he wants to negotiate a "peaceful resolution to the issues affecting consumers" that he and other state AGs have pointed out in a series of letters.

Rather unsurprisingly, after the Mississippi AG told the press that he had received no funding from the MPAA, and challenged them to look, the press looked, and to no one's surprise, they found MPAA money:

The saga of Mississippi Attorney General Jim Hood and his cozy ties to Hollywood continue to come out. He's been claiming that, sure, he met with Hollywood's top lawyer, Tom Perrelli, had him prep Hood for a meeting with Google, and even took a ~4,000 word angry letter that Perrelli wrote for him, signed it as his own and sent it to Google -- but he did all that without knowing that Perrelli worked for Hollywood's top lobbying arm, the MPAA. Uh huh.

And then in a press conference, he insisted that he was doing this out of his own interest in protecting the children -- but also admitted that his office didn't have any intellectual property experts and didn't have a million dollars to do an investigation (approximately the amount the MPAA's leaked emails show them discussing to fund this investigation) and that he needed to rely on such help from "victims" to make his case. It's fairly rare, though, that "victims" of a crime run the actual law enforcement investigation and fund it as well.

Still, in that last post, we also mentioned how Hood implied that anyone suggesting he was "paid off" might be defaming him, and apparently also stated that he wasn't getting any money from Hollywood, encouraging reporters to "check records."

Okay then. Let's... check the records. Here, for example, is the MPAA's Political Action Committee apparently giving $2,500 to an operation called "The Friends of Jim Hood."

And, you can also look at the public record of who donated to his campaign, which pretty clearly shows donations to his campaign from NBC Universal and 20th Century Fox.

And it goes on and on.

One big take away about all this is that the leaked emails reveal that the Hollywood studios long term goal is to break DNS:

Most anti-piracy tools take one of two paths: they either target the server that's sharing the files (pulling videos off YouTube or taking down sites like The Pirate Bay) or they make it harder to find (delisting offshore sites that share infringing content). But leaked documents reveal a frightening line of attack that's currently being considered by the MPAA: What if you simply erased any record that the site was there in the first place?

A bold challenge to the basic engineering of the internet

To do that, the MPAA's lawyers would target the Domain Name System (DNS) that directs traffic across the internet. The tactic was first proposed as part of the Stop Online Piracy Act (SOPA) in 2011, but three years after the law failed in Congress, the MPAA has been looking for legal justification for the practice in existing law and working with ISPs like Comcast to examine how a system might work technically. If the system works, DNS-blocking could be the key to the MPAA's long-standing goal of blocking sites from delivering content to the US. At the same time, it represents a bold challenge to the basic engineering of the internet, threatening to break the very backbone of the web and drawing the industry into an increasingly nasty fight with Google.

One final note, it appears that various legislators and Attorneys General are trying to restrict the practice of AGs getting secret funding from industry to prosecute cases.

Notice however how the New York Times story completely avoids mention that the MPAA was literally writing an AG's legal documents:

In state legislatures and major professional associations, a bipartisan effort is emerging to change the way state attorneys general interact with lobbyists, campaign donors and other corporate representatives.

This month, during a closed-door meeting of the National Association of Attorneys General, officials voted to stop accepting corporate sponsorships. In Missouri, a bill has been introduced that would require the attorney general, as well as certain other state officials, to disclose within 48 hours any political contribution worth more than $500. And in Washington State, legislation is being drafted to bar attorneys general who leave office from lobbying their former colleagues for a year.

Perhaps most significant, a White House ethics lawyer in the administration of George W. Bush has asked the American Bar Association to change its national code of conduct to prohibit attorneys general from discussing continuing investigations or other official matters while participating in fund-raising events at resort destinations, as they often now do. Those measures could be adopted in individual states.

The actions follow a series of articles in The New York Times that examined how lawyers and lobbyists — from major corporations, energy companies and even plaintiffs’ law firms — have increasingly tried to influence state attorneys general.

These outside players have tried to shut down investigations, enlist the attorneys general as partners in litigation, or use their clout to try to block or strengthen regulations emerging from Washington, the investigation by The Times found.

While it may be a stretch to say that a lot of state Attorneys General are for sale, they certainly appear to be for rent.