UPDATED: Google Files Emergency Motion To Stop Censorship Ruling Over 'Innocence Of Muslims', Is Denied
from the stop-the-insanity dept
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.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: alex kozinski, copyright, first amendment, free speech, innocence of muslims
Companies: google
Reader Comments
Subscribe: RSS
View by: Time | Thread
I dunno, this could be fun...
[ link to this | view in chronology ]
Grabbing the popcorn
[ link to this | view in chronology ]
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.
[ link to this | view in chronology ]
Re:
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.
[ link to this | view in chronology ]
Re: Re:
Unfortunately, the DMCA process is exactly like that.
[ link to this | view in chronology ]
Re: DMCA
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.
[ link to this | view in chronology ]
Re:
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.
[ link to this | view in chronology ]
Re:
Re: actors, actresses and artists retaining the ownership or copyright to - thats not really how it works.
[ link to this | view in chronology ]
Re:
Um, both Google Inc. and YouTube LLC. are named defendants in the lawsuit. So, of course it does.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
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.
[ link to this | view in chronology ]
You really don't want to go there.
It's still a work for hire even if there was fraud involved.
[ link to this | view in chronology ]
Re: Re:
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.
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.
[ link to this | view in chronology ]
Re: Re:
Being filmed without consent does not give you copyright protection. It gives you privacy rights and possibly publicity rights.
[ link to this | view in chronology ]
Re: Re:
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.
[ link to this | view in chronology ]
Re:
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.
[ link to this | view in chronology ]
Re:
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.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: First Amendment
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...
[ link to this | view in chronology ]
Re:
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.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
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.)
[ link to this | view in chronology ]
The right result
[ link to this | view in chronology ]
Re: The right result
I don't really know, but I am assuming this actress was hired to be in the film. she did her work for hire.
[ link to this | view in chronology ]
Re: The right result
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.
[ link to this | view in chronology ]
Re: Harm
[ link to this | view in chronology ]
Re: Re: Harm
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.
[ link to this | view in chronology ]
Re: Re: Harm
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.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
...For now. Perhaps it'll only lead to media becoming decentralized. I hear BitTorrent has made a few advancements in streaming video...
[ link to this | view in chronology ]
Re:
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.
[ link to this | view in chronology ]
Well, it's still unconstitutional, but at least now it's not overbroad...
[ link to this | view in chronology ]
Wisdom versus Idiocy
[ link to this | view in chronology ]
Re: Wisdom versus Idiocy
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
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.
[ link to this | view in chronology ]
And even more douchey? Defending the company that does it. Way to go, Techdirt.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]