UPDATED: Google Files Emergency Motion To Stop Censorship Ruling Over 'Innocence Of Muslims', Is Denied

from the stop-the-insanity dept

Fri, Feb 28th 2014 1:03pm — Mike Masnick

Update: And... the motion has been denied with little explanation (pdf link). We'll bring more analysis if/when we get more information.

As was fully expected, Google has quickly filed an "emergency motion for a stay" on the horrific 9th Circuit ruling that the company needed to take down all copies of the Innocence of Muslims film and block it from being re-uploaded anywhere. Google has made it clear that it will fight this decision, starting with asking the 9th Circuit for an en banc rehearing (appeals court cases are normally heard with 3 judges -- an en banc hearing, if the court agrees to hear it -- includes a larger slate of judges (in the 9th Circuit, it is almost always 11 judges, though in theory it could be all 29).

Appeals courts don't often grant requests for en banc hearings and, as such, often don't grant stays (basically holding off enforcing the order). However, with this case generating so much attention (and condemnation), hopefully enough of the judges in the 9th Circuit agree that it's worth rethinking Judge Kozinski's order.

Google's motion lays out the basic argument, highlighting that the ruling simply invents new law and ignores precedents that the court is bound by. It also highlights how the ruling seems to get some rather basic issues flat out wrong. Furthermore, it highlights that there is real harm from the censorship imposed by the ruling, while leaving the video up for a little more time is unlikely to create any additional harm (if it ever created any harm in the first place).

The panel majority's takedown order contravenes Circuit law by imposing a mandatory injunction—an injunction gagging speech, no less—even though the majority found the merits “fairly debatable.” ... The majority's novel copyright analysis is wrong on several fronts, creates splits in the Ninth Circuit, and will produce devastating effects: Under the panel's rule, minor players in everything from Hollywood films to home videos can wrest control of those works from their creators, and service providers like YouTube will lack the ability to determine who has a valid copyright claim. And absent a stay, Google, YouTube, and the public face irreparable harm because the panel's order will gag their speech and limit access to newsworthy documents—categorically irreparable injuries.

The full filing certainly highlights the likely arguments that Google is hoping to make should the court agree to an en banc hearing or, barring that, in an attempt to get the Supreme Court to hear the case.

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Filed Under: alex kozinski, copyright, first amendment, free speech, innocence of muslims
Companies: google

42 Comments

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Anonymous Coward, 28 Feb 2014 @ 1:10pm

I dunno, this could be fun...
Get filmed as an extra in a Disney movie, go to court claiming that they do not have the right to distribute it on the basis that you disagree with the movie's premise and you have copyright interest in it due to your involvement, profit! (or piss off Disney at least)
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Anonymous Coward, 28 Feb 2014 @ 1:38pm

Grabbing the popcorn
As usual, nothing will ultimately come from this. We will have real reform in the Courts when you see these Judges are slapped in the clank.
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kenichi tanaka (profile), 28 Feb 2014 @ 1:41pm

I just don't see the ruling being overturned. Not only that but Google is arguing that it has a first amendment claim? First, Google has no standing to file the appeal, that should be filed by the film-maker, not by Google or Youtube. Not only that, but this isn't a first amendment issue, I would think it's more of a copyright issue.

By arguing against the order, Google is saying that actors, actresses and artists don't have the right to order takedowns of the content they either appear in or retain the ownership or copyright to.
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Anonymous Coward, 28 Feb 2014 @ 1:44pm

The right result
The problem I have with the courts today is that judges seem to decide what they want the outcome to be and then bend the law to get that outcome. I have no doubt that this actress has been harmed by her connection with this video, but that doesn't give her a copyright claim.
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Khaim (profile), 28 Feb 2014 @ 1:52pm

Re:
Google is saying that actors, actresses and artists don't have the right to order takedowns of the content they either appear in

That is entirely the point. If you star in a movie, and later wish you hadn't, tough luck. You don't get to go around ordering people scrub the bad movie from existence.

Google has said nothing about "retain the ownership or copyright to", because it doesn't think those cases apply. Garcia clearly doesn't "own" the movie, and her copyright claim is absurdly far-fetched. And even if it wasn't, she still has to prove that claim before demanding a takedown; you generally don't get a mandatory injunction just by filing a claim.
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That One Guy (profile), 28 Feb 2014 @ 1:52pm

Re:
Not only that, but this isn't a first amendment issue, I would think it's more of a copyright issue.

How is being told to take down speech(in this case a video), and told to prohibit it from being posted in the future not a first amendment issue? Copyright was the excuse used, and poorly at that, but at it's core this is very much a first amendment case.

By arguing against the order, Google is saying that actors, actresses and artists don't have the right to order takedowns of the content they either appear in or retain the ownership or copyright to.

As for the first, 'have the right to order takedowns of the content they appear in', they don't, unless they also are the owners of the copyright for the work.

Just being in something, whether if be picture, or movie, does not automatically give ownership rights over it.
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jackn, 28 Feb 2014 @ 1:53pm

Re:
Thats because actors, actresses and artists DON'T have the right to order takedowns of the content they either appear in.

Re: actors, actresses and artists retaining the ownership or copyright to - thats not really how it works.
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Leigh Beadon (profile), 28 Feb 2014 @ 1:55pm

Re:
First, Google has no standing to file the appeal

Um, both Google Inc. and YouTube LLC. are named defendants in the lawsuit. So, of course it does.
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jackn, 28 Feb 2014 @ 1:55pm

Re: The right result
Do you know if the actress got paid? (i don't) but if so, that is the opposite of damage.

I don't really know, but I am assuming this actress was hired to be in the film. she did her work for hire.
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Simple, 28 Feb 2014 @ 1:56pm

Re:
I think you are correct. The question isn't one of free speech, rather this one goes back to the basic contract law and perhaps the false pretenses under which the actress was hired.

The ruling is that the actress has not given consent for her performance to be used in the movie, and as a result, she holds the copyright for it. So she has standing to ask for it's removal from YouTube.

Google has really no standing here. It would be up to the film maker to argue ownership and rights of the film, but the convicted fraud artist isn't doing it. Google's argument is that someone who has legal standing should not have the right to issue a DMCA. This is a case where Google will lose all day long.
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Lurk-a-lot (profile), 28 Feb 2014 @ 1:56pm

Re:
Seriously, are you that badly informed?

No standing? Google was the plaintiff!
Not a first amendment issue? Gag order.
Copyright issue? It was a work for hire. The actress doesn't own the copyright, the film-maker does - at least until he decides to sell the film to someone else.

By arguing against the order, Google is saying that only the copyright owner has the right to order a takedown. Actors, actresses and artists that WORK FOR HIRE, have never had that power as they do not own the copyright.
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jackn, 28 Feb 2014 @ 1:56pm

Re: Re:
good point
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John Fenderson (profile), 28 Feb 2014 @ 1:56pm

Re:
"Google is saying that actors, actresses and artists don't have the right to order takedowns of the content they either appear in or retain the ownership or copyright to."

No, Google is saying that performers don't have the right to order takedowns of content they appear in but don't retain ownership or copyright to.

Which is correct, performers don't have that right.
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Leigh Beadon (profile), 28 Feb 2014 @ 1:57pm

Re:
(Also, all copyright issues are first amendment issues -- because if something turns out to not be copyright infringement, then blocking it is a violation of free speech.)
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John Fenderson (profile), 28 Feb 2014 @ 2:00pm

Re: The right result
"I have no doubt that this actress has been harmed by her connection with this video"

I disagree with this. I don't think her appearance in the video caused her any harm whatsoever. Her public reaction to it is what has harmed her. If she'd just let it alone, nobody would have ever noticed her in it in the first place.

Any harm she's suffered is totally self-inflicted.
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Anonymous Coward, 28 Feb 2014 @ 2:02pm

what a shame there isn't a way of cataloging all the ridiculous decisions made on the bench and those that benefit from those decisions! i bet it would be surprising at the number but i doubt if there will be any surprises about the ones who benefit!!
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Khaim (profile), 28 Feb 2014 @ 2:06pm

Re: First Amendment
"Copyright issue" and "first amendment issue" are hardly mutually exclusive. Just because you assert that you have a copyright claim doesn't mean you actually do. You might be lying, mistaken (contract law is tricky), or I might have a valid Fair Use argument.

Consider what happens when the courts issue a mandatory injunction order that I take down the allegedly offending material, before ruling on the copyright issue. If I later prevail in the case, then I get to repost the material - and the courts will have stifled my completely legal speech. That's exactly what the First Amendment is supposed to protect against.

There's a very good reason why precedent from the 9th Circuit (and several others) gives a very high bar for this kind of injunction. Precedent that last week's order completely ignored. I can't see it not being overturned; even if Google ultimately loses the case, the order is wrong on so many levels it's hard to even comprehend.

I mean, we haven't even gotten to the part where this was only an appeal, and should have been remanded back to the district court...
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JEDIDIAH, 28 Feb 2014 @ 2:07pm

You really don't want to go there.
The problem with portraying this one movie maker as some sort of shyster is that the entire industry is filled with such characters. Even the fraud angle opens up a king size box of trouble that would even give Pandora pause.

It's still a work for hire even if there was fraud involved.
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Anonymous Coward, 28 Feb 2014 @ 2:24pm

Re: Re:
And even if it wasn't, she still has to prove that claim before demanding a takedown; you generally don't get a mandatory injunction just by filing a claim.

Unfortunately, the DMCA process is exactly like that.
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Mike Masnick (profile), 28 Feb 2014 @ 2:45pm

Re:
I just don't see the ruling being overturned. Not only that but Google is arguing that it has a first amendment claim? First, Google has no standing to file the appeal, that should be filed by the film-maker, not by Google or Youtube. Not only that, but this isn't a first amendment issue, I would think it's more of a copyright issue.

You seem woefully underinformed.

1. Google is the defendant, not the plaintiff and we're already at the appeals stage. The idea that they don't have standing? WTF? The whole case has revolved around Google. Even more to the point, its Google that is being ordered to block the content.

2. And, yes, it's both a copyright and a First Amendment issue. Prior restraint involves the government ordering certain speech not to occur, which is exactly what's happened here.

By arguing against the order, Google is saying that actors, actresses and artists don't have the right to order takedowns of the content they either appear in or retain the ownership or copyright to.

As others have pointed out, you don't know what you're talking about.

Please try to educate yourself slightly before making silly comments.
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Khaim (profile), 28 Feb 2014 @ 2:47pm

Re: Harm
I think she has received death threats over her appearance in this video. That counts as "harm". (Unless you want to claim that she's not harmed until someone actually murders her, but that seems to not fit with current law. Plus it's kind of cruel.)
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Anonymous Coward, 28 Feb 2014 @ 2:59pm

this judge needs to be suspended (preferably by the balls) for ruling in this way. is it any wonder, really, that people dont trust the legal system, when you've got those who are supposed to be learned people in positions of making decisions based on fact and law, behaving like fucking idiots, making stupid rulings that can never be fulfilled, based, so it seems, on a personal hatred of the Internet?
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Khaim (profile), 28 Feb 2014 @ 3:25pm

Re: DMCA
Not exactly; there are a few subtle legal differences. (I agree that the DMCA process is bad, but there are levels of bad.)

The DMCA involves immunity from liability. If a content provider (like YouTube) receives a DMCA takedown notice, they are free to ignore it. This does not violate any laws. All it does is allow the copyright owner to sue them - and the content provider could still win the lawsuit and suffer no penalty (aside from legal fees).

In contrast, a court issuing a mandatory injunction is a legally binding order. If YouTube ignored it, they are guilty of breaking the law. Not accused; guilty. If this happens the judges can throw people in jail and levy all sorts of fines, completely at whim, without any right to trial or any real chance of appeal. And they will, because judges do not like being played.

When a judge tells you to do something, you do it. If you think it's wrong, you file a protest and then you do it anyways. YouTube is huge, wealthy company with very good lawyers, and this is what they did. That should tell you something. Next to that, the DMCA is nothing more than a polite suggestion.
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Anonymous Coward, 28 Feb 2014 @ 4:19pm

Re: Re:
Google's argument is that someone who has legal standing should not have the right to issue a DMCA.

That is not their argument. First off, the DMCA has very little to do with it. DMCA is just a method to avoid liability. Second, they do not argue that "someone who has legal standing" should not be able to go to court; they are arguing that she does NOT own the copyright in question. And they are also arguing that even if it turns out she DOES own a copyright, the case is far from settled and an injunction is premature.

Google has really no standing here.

If someone is seeking a mandatory injunction against you, you pretty much automatically have standing to argue against it.

Imagine if a programmer sued you to force you to remove Windows from all your computers, on the grounds that you're infringing on their copyright because they wrote five lines of code and, even though they were paid for the code, they were told it would be part of a mobile application and not an OS.

By your logic, unless Microsoft showed up in court to save you, you'd have no standing to make any argument and would have to permanently uninstall your OS. That's obviously ridiculous, and it isn't how the law works.
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Anonymous Coward, 28 Feb 2014 @ 7:41pm

Re: Re:
Um, no.

Being filmed without consent does not give you copyright protection. It gives you privacy rights and possibly publicity rights.
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Anonymous Coward, 28 Feb 2014 @ 7:45pm

24 hours to comply, in a Friday evening? Well played.
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Anonymous Coward, 28 Feb 2014 @ 9:54pm

All very cleverly done on the malefactors' parts, I must admit. If they had done a poor job, the film owners might have simply taken down the movie on their own. By shoving everything else out of the spotlight and going for Google's jugular, they've granted themselves broad latitudes to take down any arbitrary media, dramatically weakening the First Amendment. An excellent weapon to use against businesses or organizations that refuse to toe the line.
...For now. Perhaps it'll only lead to media becoming decentralized. I hear BitTorrent has made a few advancements in streaming video...
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Anonymous Coward, 28 Feb 2014 @ 10:33pm

Re:
Who is "they"?

I don't think anyone arguing for the takedown cared about the precedent. The actress just wanted this particular video down, and so did the judges.

The judges ruling in this case are circuit court judges and are not easily able to use their position to take down arbitrary media. Just look at this case - that video was uploaded in 2012, and only now did they issue a preliminary injunction to take it down. And it was only THIS fast because they issued the injunction before the case was fully decided, and because the circuit court directly issued the order instead of sending it back to the district court. Even breaking the rules to make it go faster, it took them 18 months to get it down. From one website. Frankly, if this is the method "they" choose to take down "arbitrary media", "they" are going to be wasting a lot of time for little gain.

It's a horrible ruling, but that doesn't mean there's a conspiracy.
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Anonymous Coward, 28 Feb 2014 @ 10:39pm

I see that while they denied Google's motion, they did slightly modify the order: "This order does not preclude the posting or display of any version of �Innocence of Muslims� that does not include Cindy Lee Garcia�s performance."

Well, it's still unconstitutional, but at least now it's not overbroad...
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Anonymous Coward, 1 Mar 2014 @ 1:27am

Re:
Indeed. Because you get paid for your work. Just because something is awful doesn't mean you get to deny its existence.
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Anonymous Coward, 1 Mar 2014 @ 1:37am

Re: Re:
The ruling is that the actress has not given consent for her performance to be used in the movie, and as a result,

I would say that performing in front of a camera as requested is implicit permission for a film maker to use the performance, that is why they film you. Unless a written and signed agreement that the actress has a say as to whether her performance is used, she agreed to its use simply by doing as directed.
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crispy, 1 Mar 2014 @ 10:59am

Re: Re: Harm
" Unless you want to claim that she's not harmed until someone actually murders her, but that seems to not fit with current law. Plus it's kind of cruel."

If your rights haven't been violated until you know they've been violated, then you haven't been harmed until you know you're dead.
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Karl (profile), 1 Mar 2014 @ 12:27pm

Re:
By arguing against the order, Google is saying that actors, actresses and artists don't have the right to order takedowns of the content they either appear in or retain the ownership or copyright to.

And Google is correct. Merely appearing in a film (or other work) does not grant you the right to order takedowns of that content.

The only entities that can issue takedown notices are copyright holders. This is black-letter law.

I recently ran into this issue when one of the labels I work with issued DMCA takedown notices to one of those sharing blogs (and as a result got them shut down). While I respect his opinion on file sharing, I don't share it (ha).

There was no written contract between us, so he did not hold the copyright of my music. Thus, he would have no legal right to issue takedown notices of my music, even though he released it on his label. (It turns out that he did not do this in my case, but he may have with other artists.)
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Anonymous Coward, 1 Mar 2014 @ 4:01pm

Wisdom versus Idiocy
Very seldom does one get a chance to be ambassador to an approach to lessen the violent outbursts of unstable people, and g00GLe would rather not make that attempt. It is in line with the feelings I have had about them since day 2.
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John Fenderson (profile), 1 Mar 2014 @ 6:22pm

Re: Re: Harm
Well, true, it's not entirely black and white.

However, she started making a stink (understandably -- I'd be pissed too -- but inadvisedly) first. That's how everyone knew who she was and that she was in the movie.

If she'd done nothing then nobody would have noticed her in the movie, let alone know who she was, and no harm would have resulted.
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pr, 2 Mar 2014 @ 9:47am

Re: Wisdom versus Idiocy
Yes, it's much better to kowtow to people who threaten violence unless their unreasonable demands are met. It's a proven fact that it never causes them to threaten more violence in the name of more unreasonable demands.
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LAB (profile), 2 Mar 2014 @ 10:00am

The ruling of this judge makes my stomach turn. Actors in motion pictures are unequivocally performing works for hire and as such surrender rights in their performances. Yet the court says she has rights in the performance separate from the words and actions in the script? I can only envision the 9th circuit judge somehow tying the theory of right of publicity (a state claim in California) to grant rights to this actress and thus granting a copy right interest into the work. Then is she involved in a joint work between her and the filmmaker? That has to be shown as the intent of both parties from the onset and explicitly at that. This ruling makes no sense.
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Pragmatic, 3 Mar 2014 @ 4:15am

Re:
Correct on every point, but this is a result of the creeping maximalization in which people are claiming the right to control a cultural artifact after it has begun to circulate. As I've stated many times before, the idea of exercising full control over the distribution of a work - ways, means, and scope - can only ever be an illusion because, once the cat is out of the bag, how the hell do you get it back in?

Unfortunately, as the push for maximalization increasing, we can expect to see more of these. As other commenters have pointed out, this *might* result in the MAFIAA coming out on our side as the penny begins to drop - what if performers in music videos become unhappy later on and want the video pulled from circulation?

Keep an eye on this one, it's going to be fun.
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Anonymous Coward, 3 Mar 2014 @ 4:32am

Just want I think Google couldn't be any more of a douche, they go and defend this blatantly racist BS. Keep it classy, Google.

And even more douchey? Defending the company that does it. Way to go, Techdirt.
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Niall (profile), 3 Mar 2014 @ 4:39am

Re:
Fighting a bad law and bad precedent does not mean defending one particular however-yucky example. This could as easily apply to Citizen Kane or Casablanca. The issue isn't how good the product is, it's who has a legitimate beef with whom, and what is a fair response.
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limbodog (profile), 3 Mar 2014 @ 7:30am

Ben Affleck & J-Lo take notice.
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Anonymous Coward, 3 Mar 2014 @ 7:39am

Re:
You don't know what free speech is.
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