• by Wendy Davis  @wendyndavis, November 12, 2014

The 9th Circuit Court of Appeals said on Wednesday that it will reconsider whether Google must remove the clip “Innocence of Muslims” from YouTube.

The appellate court said in its order that the original opinion in the case, issued in February by a three-judge panel, will no longer carry weight within the 9th Circuit. The new appeal will be heard “en banc,” meaning that at least 11 of the 29 active judges in the circuit will consider the matter.

The decision to grant a rehearing is a victory for Google, which argued that the take-down order violated its free speech rights. A host of tech companies, media outlets and law professors joined Google in asking the 9th Circuit to rehear the matter

The original take-down order grew out of a lawsuit filed in 2012 by actress Cindy Lee Garcia, who appeared for five seconds in the 14-minute clip.

She alleged that Google infringed her copyright in her performance by hosting the incendiary clip on YouTube. She argued that she was duped into appearing in the clip after answering a Backstage ad for the film "Desert Warrior," which she thought was an adventure movie set in ancient Egypt. Garcia also says her dialogue was dubbed over, and that she didn't utter the “hateful” words attributed to the character she played.

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.

Google argued that the actress lacks a copyrightable interest in the clip. U.S. District Court Judge Michael Fitzgerald in the Central District of California agreed with Google and dismissed the lawsuit in late 2012.

He ruled that Garcia doesn't appear to own a copyright interest in the clip. Fitzgerald added that even if Garcia once had a copyright in her performance, she assigned it to the film's author.

Garcia then appealed to the 9th Circuit. In February, a three-judge panel of the appellate court reinstated the case, and also entered a preliminary injunction requiring Google to take down the video pending a trial on the copyright issues. Chief Judge Alex Kozinski said in that ruling that Garcia was “likely to prevail” with her copyright infringement claim.

“While answering a casting call for a low-budget amateur film doesn’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa,” Kozinski wrote for the two-judge majority. “But that’s exactly what happened to Cindy Lee Garcia when she agreed to act in a film with the working title 'Desert Warrior.' ”

The decision surprised many industry observers, who said it marked a dramatic expansion of copyright principles.

Google asked the entire court to reconsider; numerous outside companies -- including Netflix and Facebook -- backed that request. Netflix argued in court papers that the ruling could enable almost anyone who appears in an online video to assert a copyright interest in the clip and demand its removal.

“By creating a new species of copyright, and empowering essentially any performer in a motion picture or television program to both sue downstream distributors and enjoin any use of her performance of which she does not approve, the panel majority risks wreaking havoc with established copyright and business rules on which all third-party distributors, including Netflix, depend,” the video distributor wrote in a friend-of-the-court brief urging the 9th Circuit to rehear the case

Facebook, Twitter, Yahoo, eBay and Gawker Media, added in a separate friend-of-the-court brief that the panel's order is “unworkable” and “poses a serious threat to online service providers’ businesses.”

Two separate groups of law professors, including Santa Clara University's Eric Goldman, also filed friend-of-the-court briefs urging the court to reconsider. The brief filed by Goldman argues that the order against Google could encourage other people who don't like online material about themselves to raise questionable copyright claims in order to suppress speech.

Goldman cheered the news that the court will re-hear the case, but added that the move won't necessarily lead to a different outcome. “I'm hoping that, at minimum, we get a better opinion, even if we don't get a better result,” he says.

Goldman adds that the original opinion has “enormous” implications for Web companies, because it leaves them vulnerable to copyright infringement claims brought by people who merely appear in a clip.

Garcia's lawyer, Cris Armenta, says in an email that she and the other members of the legal team “look forward to continuing to advance Ms. Garcia’s copyright interests, her right to be free from death threats, and her First Amendment right to be disassociated from hateful speech which she did not utter nor condone.”