Commentary

Appeals Court To Reconsider 'Innocence Of Muslims' Takedown Order

The 9th Circuit Court of Appeals said today that it will reconsider whether to order Google to remove the clip 'Innoncence of Muslims' from YouTube. The court also said that the original opinion in the case, issued in February by a three-judge, won't serve as precedent within the 9th Circuit.


The decision to re-hear the appeal is a victory for Google, which argued that the takedown 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 dispute dates to 2012, when actress Cindy Lee Garcia sued Google for allegedly infringing her copyright 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.

Google argued that Garcia lacks a copyrightable interest in the clip. A trial judge agreed with Google and dismissed the lawsuit. She appealed to the 9th Circuit and, in February, a three-judge panel of the appellate court reinstated the case and entered a preliminary injunction requiring Google to take down the clip pending a trial on the copyright issues.

That ruling came as a surprise to many industry observers, who say it marks a dramatic expansion of copyright principles. 

Netflix and other critics 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,” Netflix said earlier this year 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.  

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