No, Triton Media's Settlement Does Not Mean Anything For Google

from the settlements-are-not-precedential dept

Earlier this year, we noted the decision by Disney and Warner Bros., to sue Triton Media, an advertising firm, for supposedly working with various sites that (the studios claimed) facilitated copyright infringement. A big part of the argument was that Triton was working specifically with such sites, knowing what they did and was therefore somehow liable. Yet, as we noted, this seemed like it was massively separate from the actual infringement. Many of the sites in question were merely links sites, so any actual infringement was happening with users on very different servers, so it seemed crazy to blame the company that was selling ads.

Yet, last month, when we wrote about how Triton decided to settle up for $400k, this hardly meant, as The Hollywood Reporter claimed, that this was a "win." There were many reasons why Triton might settle (including that it's cheaper than fighting), and such a settlement isn't precedential on anyone else. But (of course), in typically misleading fashion, the MPAA put out a press release claiming that it had "obtained a judgment," against Triton.

Now, here's what's sneaky. There are various ways to "settle" a case, and one is a "consent judgment." That's just a settlement worked out by the two parties, rather than the judge issuing an actual decision on the case. As part of that, there is a consent judgment issued by the court, but it's what the parties agreed upon, rather than what you normally think of as a court ruling, where the judge is deciding the result. Yet, the MPAA spun it as the studios winning a ruling where the judge had to weigh the merits of each side and came up with this result. That is incredibly misleading... but it seemed to have the desired effect.

For example, music industry lawyer Chris Castle, who never misses a chance to attack Google, no matter how weak or laughable (or wrong) the argument might be, posted to his blog about the decision, comparing it to Google, and suggesting that Google might be next. I left a comment for Castle noting that, as a lawyer, surely he was aware of what a consent judgment was, but (surprise, surprise) Castle refuses to post any comments from me (the same thing happened earlier this year when I repeatedly sent him comments noting blatant factual errors in posts). And, with that in the bag, Andrew Orlowski over at The Register decided to write his standard misleading drivel, claiming that the "ruling" sent a "chill through Google." Except, again, it's not actually a ruling in the traditional sense, but a settlement between the parties. Somehow, that doesn't make it into the article at all. And then others, who aren't as directly biased, picked up on it as well. Kit Eaton, over at Fast Company, picked up on Orlowski's article, and wrote an article suggesting "Google could be next."

Well, sure, Google "could" be next, but the scenarios are entirely different, and what Google does is quite different than Triton. But, more importantly, this "ruling" has no bearing on Google because it's not a precedential ruling, but just a settlement between the parties. And, it's unlikely that Google would just settle such a lawsuit, but would fight it. Of course, the studios and the MPAA know all of this. I'm not sure if Castle, Orlowski and Eaton know (or care) about all of this, but at least with Castle and Orlowski, it appears that they played this up for maximum FUD, as is their standard operating procedures.

Update: Apparently there are two different companies named Triton Media, and the one that wasn't sued doesn't like to be associated with the one that was sued (understandable). So the one that was sued and settled is Triton Media, out of Scottsdale, Arizona. Not Triton Media Group, which is based in Sherman Oaks, California.


Reader Comments (rss)

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    A Dan (profile), Nov 8th, 2010 @ 11:03am

    Misleading drivel

    I think you guys need to settle this with a dance-off.

     

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    out_of_the_blue, Nov 8th, 2010 @ 11:19am

    A consent decree *is* a judgment of the court.

    A judge is (in theory) referee between opposing parties, but in a civil case, the court can choose to let them determine details between themselves, with option to throw that out and proceed to trial, and it *is* in every way as binding as any other court ruling.

    Therefore that this "ruling" bodes ill for Google is true -- so far as the usual limits on cases go.

    Opposite to Castle, you have a habit of stretching points to support Google.

     

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      btr1701 (profile), Nov 8th, 2010 @ 11:42am

      Re: A consent decree *is* a judgment of the court.

      > the court can choose to let them determine
      > details between themselves, with option to
      > throw that out and proceed to trial

      A court can't force the parties in a civil suit to continue with the lawsuit if they don't want to.

      If A sues B, then A and B get together and work out a settlement and as part of that settlement, A drops the case against B, the judge can't come in and say to A, "Nope, sorry, I don't approve of your settlement so I'm requiring you to continue suing B."

       

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        out_of_the_blue, Nov 8th, 2010 @ 12:11pm

        Re: Re: A consent decree *is* a judgment of the court.

        SO? Then A LOSES TOTALLY! What was the point of suing?

        Anyway, I'm not *sure* that's true. As I hear it, if B is still willing to go to trial -- this almost never happens for obvious reasons, so it's murky to me -- then he can object to dismissal and let the case proceed so that he has "his day in court" WITH remedy against A possibly awarded by a jury.

         

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          btr1701 (profile), Nov 9th, 2010 @ 8:27am

          Re: Re: Re: A consent decree *is* a judgment of the court.

          > SO? Then A LOSES TOTALLY! What was the point of
          > suing?

          A doesn't lose totally. Let's make this a more real-world example.

          I go shopping at Wal-Mart. While I'm in the store, a Wal-Mart employee runs into me with a forklift, causing me permanent injury. That's clearly negligent and I sue Wal-Mart for $10 million for medical bills, lost wages, pain and suffering and loss of future income.

          Before trial, Wal-Mart offers to settle for $8 million, contingent upon me dropping the lawsuit and their non-admission of fault.

          I agree and drop the suit in exchange for the money. I clearly haven't "lost totally" as you claim. Sure, I came up $2 million less than I sued for, but I gained an immediate pay-off rather than having to undergo years of litigation and appeals in order to get it.

          At this point, it's over. The judge can't decide on his/her own that the settlement is void and force me to continue suing Wal-Mart and go to trial.

          Leaving aside the legal reasons why judges don't have that power, civil suits are *very* expensive for both parties and a judge can't force someone to spend that kind of money if they don't want to.

          > Anyway, I'm not *sure* that's true. As I hear it,
          > if B is still willing to go to trial -- this almost
          > never happens for obvious reasons,

          Of course it doesn't ever happen, because we're talking about settlements here. Why would B agree to settle and then turn around and demand to go to trial?

          In my example above, that would be like Wal-Mart agreeing to pay me $8 million dollars if I drop the suit, then demanding we go to trial anyway. It's illogical and nonsensical. If Wal-Mart wants to go to trial, they'd never settle in the first place.

           

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        out_of_the_blue, Nov 8th, 2010 @ 12:20pm

        Re: Re: A consent decree *is* a judgment of the court.

        I've thought of a quibble, so you might too: If A works out a settlement with B and drops the case, there is *no* enforcement of that agreement possible except by going back to court with the original complaint. So if A drops the case, B just smiles and does as he wishes: A gets NOTHING, is the result, as I said.

         

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          Chris Rhodes (profile), Nov 8th, 2010 @ 1:15pm

          Re: Re: Re: A consent decree *is* a judgment of the court.

          there is *no* enforcement of that agreement possible

          You mean except for the terms of the settlement agreement contract?

           

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          Michael, Nov 9th, 2010 @ 5:41am

          Re: Re: Re: A consent decree *is* a judgment of the court.

          You do not understand settlements.

          They are binding - they are a contractual agreement. Yes, one party COULD break the contract and try to file suit after having agreed not to. Unless agreement was void for some good reason, a judge would throw that case out pretty quickly.

           

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      Anonymous Coward, Nov 8th, 2010 @ 12:58pm

      Re: A consent decree *is* a judgment of the court.

      The point is that this case did nothing for or against Google.

      There is no precedent set, so Google is neither "quivering in fear" or "uncapping the champagne", so to speak. It's just business as usual.

       

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    Matt (profile), Nov 8th, 2010 @ 11:26am

    Your comment has disappeared, the site now says 0 comments.

     

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    Eriq Gardner, Nov 8th, 2010 @ 11:30am

    precedential

    You're mischaracterizing what I wrote. I didn't say it was a legally precedential victory for the MPAA. The headline only stated that the studios won a settlement. "Win," as to succeed in reaching. Unless you believe the defendant happily handed over money without any care, the MPAA did in fact reach a goal.

    So the Triton settlement isn't precedential in terms of case law. No duh. But that's not the only way to read the significance of a legal move. The fact is that the studios went after an interesting target -- which you yourself noted in an August 27th post saying that "folks in Hollywood are trying a slightly different tactic..."

    So does it mean anything for Google? Maybe not in terms of precedential case law. But if the lawsuit signals the direction that the MPAA is heading in terms of its litigation strategy, it clearly does.

     

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      Anonymous Coward, Nov 8th, 2010 @ 12:21pm

      Re: precedential

      Wait...

      How is he characterizing what you wrote? You're not even mentioned!

      Or maybe I'm just blind...Please point out your name/site/article.

       

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  •  
    identicon
    Anonymous Coward, Nov 8th, 2010 @ 11:45am

    Really? Goolag?

    I mean, I always laugh when Google fanboys call Apple "Crapple", but Goolag? That's the best he can come up with? There's gotta be a better insult term than that.

     

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      Free Capitalist (profile), Nov 8th, 2010 @ 1:07pm

      Re: Really? Goolag?

      There's gotta be a better insult term than that.

      Someone else should take a shot at this, as this really isn't my venue. But since no one else is biting....

      -Gooeygle
      -Addle (second 'd' is possibly surreptitious depending on your take)
      -Buygle
      -All your base are google to us
      -Garble
      -Thesearentthehitsyourelookingforgle
      -GoTo.google (extra sorry about this one)

      and my personal favorite:
      Geek Squad

       

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    identicon
    Anonymous Coward, Nov 8th, 2010 @ 12:04pm

    Dude hates everything about Google except for, of course, Blogger. HA.

     

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    identicon
    Anonymous Coward, Nov 8th, 2010 @ 12:16pm

    Universal Studios is advertising on ezywatch (a time-limit bypass for megavideo).

     

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    Tom The Toe, Nov 8th, 2010 @ 12:54pm

    Re: Precedential

    He's the goober who wrote the article ref. for the Hollywood Reporter. (Link in the original post).

     

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    Mr Claypole (profile), Nov 9th, 2010 @ 9:03am

    the musictechpolicy site appears to be gone. Just a google 'not found' error page now.

     

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    Gene Cavanaugh, Nov 9th, 2010 @ 10:28am

    Triton Media consent judgement

    Excellent analysis. My tort teachers would have given you an "A" for your work.
    I have heard, in the far past, of companies like Triton "settling" with a hidden agreement for enough work to show an overall profit from the organizations they "settled" with - that way, the "winners" can claim a big "win", they get advertising services they wanted anyway, and the advertiser gets their business.
    Any chance of this sort of thing? At one time, it would have been grounds for collusion charges, but in the sorry state of the law today, it might even be "legal" (wink-wink, nudge-nudge).

     

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