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Earlier today, the 9th Circuit Court of Appeals issued a shocking ruling by determining that Innocence of Muslims actress Cindy Lee Garcia could assert a copyright interest in her performance in the film and that Google had to remove the controversial anti-Islamic film from YouTube.
The opinion could usher in all types of new lawsuits from Hollywood creatives over films, TV shows and other works that rely on joint contributions. Notably, 9th Circuit Chief Judge Alex Kozinski rejected many of Google’s arguments, including that Garcia’s performance was a work for hire and that she made an implied license when agreeing to perform. As a result, the ruling is not only a potential litigation bonanza for the Hollywood plaintiff’s bar, but ISPs will now have tough days ahead of them in determining how to respond to copyright takedown notices from individuals who, before today, might not have been presumed to hold any interest in copyrighted material.
But that’s all a matter for another day.
What has caused Google’s ire was a highly unusual run-up to Wednesday’s ruling.
On Feb. 19, the 9th Circuit directed Google to take down all copies of Innocence of Muslims from its platforms. What’s more, the appellate circuit issued an extraordinary gag order that required the parties not to talk about it.
In response, Google filed under seal an emergency motion to stay the order pending a rehearing en banc before a full panel of 9th Circuit judges. That motion has become available and can be read in full here.
The web giant called the order removing Innocence of Muslims a “classic incursion on the First Amendment,” the gag order “extraordinary” and the entire ordeal “stunning.”
Google pointed out that the order to remove copies extended beyond copies identified by Garcia and was broader than anything she has even requested. A search for “Innocence of Muslims” on YouTube returned over 58,000 results, Google reported, and the 9th Circuit was told that such results could contain commentary, news stories and other works that merely contain some or all of the original video. Google also didn’t understand the rationale for going beyond the five seconds that Garcia appeared in the movie to have the entire movie removed.
The 9th Circuit denied the emergency motion, and in today’s ruling, two out of three judges on a panel made clear they didn’t see Garcia’s contribution as de minimis.
And so, the dispute continues.
Judge Kozinski has ordered the film off of Google and remanded the case back to a district court, but if last week’s motion by Google is any guide, the next step will be a highly charged motion for reconsideration at the 9th Circuit. That should bring a parade of amicus briefs. The MPAA and SAG-AFTRA (and many of the leading technology companies) haven’t yet publicly commented on the matter, but it’s almost unimaginable they won’t offer an opinion given the suddenly huge stakes of this case.
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