There's obviously no love lost between Hollywood and Google on the intellectual property front, but would the Academy of Motion Picture Arts and Sciences make a splashy move like suing Google?
For the past two years, AMPAS, which puts on the Oscars each year, has been locked in a legal battle with GoDaddy. At issue in the case is whether the domain registrar giant facilitates trademark infringement from unscrupulous cybersquatters by allowing users to buy a domain like oscarshotels.com or oscarsliveblogging.com, "park" the page and collect a portion of revenue from GoDaddy's advertising partners on a pay-per-click basis.
The litigation has been stuck at the pre-trial discovery stage, and there, GoDaddy appears to be mounting what might be called a "Blame Google defense."
As a result, in the past month, both GoDaddy and AMPAS are attempting to get the judge to compel Google to hand over documents. Further, both parties are also looking to depose Google executives. Google is resisting, telling a judge, "Both parties to this litigation would undoubtedly love to bring Google into the mix, but discovery should not be used as a fishing expedition to develop claims that were not pled."
The already nasty litigation could trigger tremendous fallout.
In December 2010, a federal judge in California allowed AMPAS to go ahead with its claims that GoDaddy’s “illegal activities result in advertising related to the Academy’s marks being placed on numerous parked pages that have actual relationship to the Academy, thereby causing dilution of Plaintiff’s interest in legally protected trademarks.”
Since then, AMPAS has been deposing many employees at GoDaddy, all the way up to the company's eccentric founder Bob Parsons.
One big take-away from the discovery is a focus on Google's involvement.
According to one court filing by the Film Academy, "GoDaddy has repeatedly informed AMPAS and the Central District of California Court that the sponsored links and advertisements on the Parked Pages are supplied by Google through Google's 'Adsense for Domains program (AFD)."
To win the lawsuit, AMPAS has to demonstrate of a "bad faith intent to profit" from websites illegitimately registered. AMPAS says that as this case has proceeded, GoDaddy has been making the case that it cannot be liable under the Anti-Cybersquatting Protection Act because Google's AFD program is "solely responsible."
Further, AMPAS points to what's been said during the depositions: "Plaintiff has deposed at least 12 GoDaddy witnesses -- many of those witnesses have been unable to answer even basic questions about who, what, when, and how GoDaddy came to the decision to monetize its Parked Page Programs. The only other entity with knowledge on these issues is Google."
As a result, AMPAS has been demanding that a judge compel Google to give up information related to the implementation of AFD with respect to GoDaddy's Parked Page Programs; its policies, procedures, and expectations relating to domain names incorporating third party trademarks; and revenue sharing between Google and GoDaddy.
AMPAS has already gotten 4,600 documents from Google, but it wants more, plus depositions of Google executives.
The pressure on Google is also coming from GoDaddy, which has also served a subpoena on the web search giant. GoDaddy is also seeking information about Google's decisions and policies.
The moves have brought a strong objection from Google.
On an initial matter, Google says that an agreement in writing between it and GoDaddy has barred any discovery upon Google in this lawsuit.
That's because Bryan Cave, the law firm representing GoDaddy, also represents Google in other matters. Because of the conflict, a waiver was worked out about 18 months ago where Bryan Cave could handle the case as long as GoDaddy wouldn't seek discovery from Google. (GoDaddy says it never authorized the waiver. The mess appears to be a terrible headache for Bryan Cave, one of the nation's biggest law firms.)
Google also objects to the way that this all has been handled, allegedly without proper notice and in an untimely fashion. The company asserts this is going to be a burdensome nightmare. What's being demanded of them?
"In short, everything, for seven years, about one of Google’s major advertising products, from its inner workings and trade secret algorithms, to all of its terms and regulations, to all of its income," responds Google in legal papers. "The task of preparing a single witness even for this one topic is daunting: it is the equivalent of asking General Motors for the person most knowledgeable about 'Chevys, including . . . . '”
(AMPAS has assured the court that it "has no desire to gain visibility into Google's 'search and advertising algorithms.'")
The developing controversy in this court case may be opening a rift between two Internet giants -- Google and GoDaddy -- and demonstrating the stakes.
Google argues that its role is irrelevant. "Simply put, a domain name violates or does not violate the ACPA regardless of the contents of the associated webpage," it says in opposition to motions to compel.
But GoDaddy hardly agrees, saying in legal documents, "Although Google has repeatedly tried to distance itself from the underlying litigation, the import of AMPAS’ claims, which seek to hold Go Daddy liable for inter alia contributory cybersquatting as a result of providing a method for the placement of specific advertisements on allegedly infringing domain names, cannot be underestimated in relation to Google’s bottom line."
AMPAS and one of its attorneys hasn't responded to our question of whether Google faces any potential lawsuit. A hearing on Google's cooperation with the ongoing lawsuit is scheduled for next Tuesday in a San Jose federal courthouse.
E-mail: firstname.lastname@example.org; Twitter: @eriqgardner