• by Wendy Davis  @wendyndavis, July 11, 2014

An appellate court has again rejected Google's argument that it has a free speech right to continue to host the controversial clip “Innocence of Muslims.”

In a revised opinion issued on Friday, a panel of the 9th Circuit Court of Appeals reiterated an order directing Google to remove the clip on the grounds that it potentially infringes the copyright of actress Cindy Lee Garcia.

Google has been fighting that order since February, when the appeals court initially ruled on the case. Among other arguments, Google said the takedown order was an unconstitutional “prior restraint” on speech -- or prohibition on speech before there had been a trial.

The appellate panel on Friday rejected that position by a 2-1 vote. “The First Amendment doesn’t protect copyright infringement,” Circuit Judge Alex Kozinski wrote in an opinion joined by Ronald Gould.

Kozinski repeated his original conclusion that Garcia potentially owns a “copyrightable interest” in her five-second performance in the clip. “We need not and do not decide whether every actor has a copyright in his performance within a movie,” Kozinski wrote. “It suffices for now to hold that, while the matter is fairly debatable, Garcia is likely to prevail based on the record and arguments before us.”

Kozinski added that the trial judge can still decide that Garcia doesn't have a legitimate copyright in her performance for several reasons, including that the U.S. Copyright Office recently denied Garcia's request to register a copyright. “The district court may ... defer to the Copyright Office's reasoning, to the extent it is persuasive.”

Kozinski also said that the trial judge could consider other defenses, including whether Google has a fair use right to display the clip.

Garcia says she was duped into appearing in "Innocence of Muslims" after answering a Backstage ad for the film "Desert Warrior," which she thought was an adventure movie set in ancient Egypt. When the clip appeared on YouTube in September 2012, it was blamed for sparking a wave of protests in the Mideast. Garcia alleged in court papers that she received death threats after the film was posted to YouTube and lost her job, due to security concerns sparked by her appearance in the movie.

In an effort to convince Google to remove the clip, she sued the company for copyright infringement.

Those unusual set of facts obviously influenced Kozinski's opinion. “Garcia was duped into providing an artistic performance that was used in a way she never could have foreseen,” he wrote. “Her unwitting and unwilling inclusion in 'Innocence of Muslims' led to serious threats against her life. It’s disappointing, though perhaps not surprising, that Garcia needed to sue in order to protect herself and her rights.”

Dissenting Circuit Judge N. Randy Smith argued that the majority opinion gave short shrift to the “important public interest” of avoiding pre-trial restraints on speech -- especially given that Garcia might ultimately lose her copyright infringement claim. “The law and facts do not clearly demonstrate how granting a preliminary injunction in Garcia’s favor would serve the public interest,” he wrote.

“If Google were actually infringing Garcia’s copyright, the First Amendment could not shelter it,” he added. “But the case at bar does not present copyright infringement per se. Instead (in an unprecedented opinion), the majority concludes that Garcia may have a copyright interest in her acting performance.”

Friday's decision might not be the final word from the 9th Circuit. The judges on that court are still considering Google's petition for a rehearing in front of a larger panel. A broad array of outside groups -- including Netflix, Facebook and Wordpress, Facebook and others -- have filed friend-of-the-court papers backing Google's request for a new hearing.

Netflix and others say that the ruling in favor of Garcia could enable almost anyone who appears in an online video to assert a copyright interest in the clip and demand its removal. “While Netflix has no doubt that Ms. Garcia was mistreated by the filmmakers here, bad facts should not be allowed to make bad law: This Court should not upend copyright law in its search for a remedy,” the online video company argues.