Judge Kozinski Refuses To Even Consider That His Ruling To Censor 'Innocence Of Muslims' On Copyright Grounds May Go Too Far

from the bad-facts,-bad-law dept

Mon, Mar 3rd 2014 11:11am — Mike Masnick

On Friday, we had posted about Google's motion for an emergency stay on Judge Alex Kozinski's horrific ruling that forced Google to remove all copies of the controversial Innocence of Muslims trailer, based on a bizarre interpretation of copyright law, which gave an actress who appears in 5 seconds of the 13 minute trailer the ability to claim a copyright and take down every copy of the trailer. We had posted an update late Friday with the news that Judge Kozinski had quickly denied the motion, and only made one small change to his order, saying that copies of the video without Ms. Garcia's 5 seconds did not need to be taken down. At the very least, this is a small concession that his original order was insanely overreaching and broad.

What's troubling here, though, is that Kozinski seems completely blind to the fact that his ruling is extremely controversial and involves breaking serious new ground in how to interpret copyright law -- in a manner that appears to be quite different than every other court in history that has raised these issues. While there are some lawyers who seem to think that Kozinski's ruling makes sense, there are tons who disagree, including many of the top copyright experts in the field. Just the fact that this case is generating so much controversy from within the copyright bar should at least indicate that Kozinski's interpretation should be looked at more closely -- and as such, it seems quite reasonable for the 9th Circuit, and Kozinski in particular, to humbly recognize that for the sake of not censoring protected speech, the original order should be stayed until it can be reviewed.

Kozinski, unfortunately, is not exactly known for his humility. And while that sometimes makes him one of the most entertaining judges around, it seems dangerous in this particular case. He seems to have made up his mind that his ruling makes sense and, even if many people disagree with him, he appears to have no time to even think that maybe he misjudged the basic tenets of copyright law. On controversial decisions, it's fairly common for judges to admit that the ruling is likely to be reviewed, and to agree to a stay. It's disappointing that Kozinski seems so sure he's right here that he's unwilling to hold off on enforcing the order in the case until others might have a chance to review his rather novel reading of the law.

Google Order usca9 2 28 (PDF)Google Order usca9 2 28 (Text)

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

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Anonymous Coward, 3 Mar 2014 @ 11:42am

What is there to consider? The judge was absolutely right.
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- Designerfx (profile), 3 Mar 2014 @ 11:44am
  
  Re:
  right about what? Letting copyright override protected speech?
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  - That One Guy (profile), 3 Mar 2014 @ 11:48am
    
    Re: Re:
    It's not even 'copyright' as most would consider it, rather a mangled, stretched, tortured version of copyright, where an actress, who shows up for 5 second in a 14 minute clip*, is considered to have a valid copyright claim on the entire video.
    
    *Might be off on the numbers here, but these are what I've heard.
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    - Anonymous Coward, 3 Mar 2014 @ 12:39pm
      
      Re: Re: Re:
      No. The ruling explicitly states that she doesn't have a valid claim on the entire video, and the revised ruling makes clear that any copy with her performance removed is not affected.
      
      This is a complicated enough issue to discuss without making up false facts.
      [ link to this | view in chronology ]
      - Anonymous Coward, 3 Mar 2014 @ 1:08pm
        
        Re: Re: Re: Re:
        Not the point. Has she proved that the work done was not done on a 'work-for-hire' basis?
        [ link to this | view in chronology ]
        
        John Fenderson (profile), 3 Mar 2014 @ 1:20pm
        
        Re: Re: Re: Re: Re:
        Even that much doesn't need to be proven to shoot down this ruling.
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        Anonymous Coward, 3 Mar 2014 @ 1:30pm
        
        Re: Re: Re: Re: Re: Re:
        Perhaps so, but I don't think any knowledgeable person is questioning the soundness of the "not a work made for hire" ruling.
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        Anonymous Coward, 3 Mar 2014 @ 1:29pm
        
        Re: Re: Re: Re: Re:
        Whose point? A point you just made up? The guy I responded to said something that's just not true.
        
        Anyway, there was no evidence of a written work made for hire agreement and the court held she was not an employee, so there was no basis to hold that the producer was the author as a work made for hire.
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        Anonymous Coward, 3 Mar 2014 @ 1:39pm
        
        Re: Re: Re: Re: Re: Re:
        By that logic, publishing any photo or video that include any person, without their express permission, could be subject to take down on copyright grounds. Amongst other things that would cripple new reporting, and allow anybody to get any image or video that they do not like taken down.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 3 Mar 2014 @ 1:57pm
        
        Re: Re: Re: Re: Re: Re: Re:
        I'm not sure which logic you're referring to. I just explained why it wasn't a work made for hire, which isn't seriously questioned in this case.
        
        If you're talking about bogus DMCA takedowns, that's a risk regardless of this ruling.
        
        If you're talking about actual suits and rulings, this case does not make everyone in any photo a potential copyright owner, but it's true that someone consciously contributing their own creative expression might have a copyright interest. Of course, if they are consciously doing so, they are almost certainly granting an implied license for use of their image.
        
        Now, if there's a street musician performing in the background of a news video, then maybe he or she does have a copyright claim, but I believe there would be other first amendment concerns not present in this case that could change the result. Perhaps even the copyright analysis would be different, if the performer is unwittingly being recorded.
        [ link to this | view in chronology ]
        
        LAB (profile), 3 Mar 2014 @ 4:13pm
        
        Re: Re: Re: Re: Re: Re:
        Then they are joint authors? That agreement must be explicit and decided at the onset.... Then perhaps she gave an implied non exclusive license to use her performance and she has decided to rescind that license? Or she saw them filming and didn't realize her image would be used. She must have wandered on set.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 3 Mar 2014 @ 5:23pm
        
        Re: Re: Re: Re: Re: Re: Re:
        I think there's a decent argument for joint authorship (in the absence of a written agreement), but Ninth Circuit precedent on that matter is not favorable for the plaintiff and the panel rejects that conclusion.
        
        I'm not sure what agreement you're talking about in your second sentence, but joint authorship doesn't require an agreement.
        
        She clearly granted an implied license (did you read the opinion?). They used the film outside the scope of that license. The court explicitly states this will hardly ever be the case, but the crazy facts in this case show that's what happened.
        [ link to this | view in chronology ]
        
        Karl (profile), 3 Mar 2014 @ 5:05pm
        
        Re: Re: Re: Re: Re: Re:
        Anyway, there was no evidence of a written work made for hire agreement
        
        Actually, there was, but it is in dispute. Google brought in the agreement, but Garcia claimed it was forged. The lower court didn't rule on the matter, and it didn't make it to the circuit court (yet).
        
        Yet another reason that the preliminary injunction and gag order were bad ideas.
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      - That One Guy (profile), 3 Mar 2014 @ 1:58pm
        
        Re: Re: Re: Re:
        When the results are the same, they might as well have said she had a copyright claim over the entire film.
        
        Keep in mind it was only the revised ruling that specified that copies of the video without her part in it were acceptable, the original order did not(as far as I'm aware) make that distinction, and simply ordered all copies of the video to be pulled, and even blocked from being posted.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 3 Mar 2014 @ 2:07pm
        
        Re: Re: Re: Re: Re:
        So...the results are not the same, as clarified by the court's revised ruling.
        [ link to this | view in chronology ]
      - techflaws (profile), 3 Mar 2014 @ 10:10pm
        
        Re: Re: Re: Re:
        This is a complicated enough issue to discuss without making up false facts.
        
        What's a false fact?
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        Anonymous Coward, 4 Mar 2014 @ 9:34am
        
        Re: Re: Re: Re: Re:
        Something that isn't true. A false assertion of fact.
        [ link to this | view in chronology ]
  - This comment has been flagged by the community. Click here to show it
    
    Anonymous Coward, 3 Mar 2014 @ 11:49am
    
    Re: Re:
    Except that there's no such thing as "protected speech". This is just more sensationalism by tech blogs.
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    - That One Guy (profile), 3 Mar 2014 @ 11:57am
      
      Re: Re: Re:
      Just... how... how did you make a statement that wrong, and not realize it?
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    - Chronno S. Trigger (profile), 3 Mar 2014 @ 12:03pm
      
      Re: Re: Re:
      I was going to call you "a raging moron", but then I thought maybe you're just from another country. Though I think the vast majority of the world knows what I'm about to explain to you.
      
      In the US there's this thing called the Bill of Rights. It is a document we hold above all else. One of the first things in this document is a thing called The First Amendment. It states that the United States Government cannot infringe upon it's citizens rights to free speech. Basically, all speech is protected in the US.
      [ link to this | view in chronology ]
      - PRMan, 3 Mar 2014 @ 12:17pm
        
        Re: Re: Re: Re:
        All speech which doesn't directly physically harm others, like shouting fire in a theater causing panic and killing people.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 3 Mar 2014 @ 12:43pm
        
        Re: Re: Re: Re: Re:
        Please see this article about that "Shouting Fire In A Theater" thing. Three Generations of a Hackneyed Apologia for Censorship Are Enough
        [ link to this | view in chronology ]
        
        Anonymous Coward, 10 Mar 2014 @ 10:12am
        
        Re: Re: Re: Re: Re:
        Still allowed to say it. You might have to answer for some other crime (inciting a riot, for instance), but the speech, itself, is protected.
        [ link to this | view in chronology ]
    - Jack, 3 Mar 2014 @ 12:16pm
      
      Re: Re: Re:
      No such thing as "protected speech"? Are you sure about that? You might consider taking a little gander at http://en.wikipedia.org/wiki/Freedom_of_speech
      
      I know it is a pretty long sentence, but the First Amendment isn't all that difficult to understand...
      [ link to this | view in chronology ]
    - Kaemaril (profile), 3 Mar 2014 @ 1:28pm
      
      Re: Re: Re:
      Come now, if you want to troll surely you can be a bit more sophisticated than that? Five seconds of searching in any search engine would put the lie to your words.
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- Anonymous Coward, 3 Mar 2014 @ 12:03pm
  
  Re:
  Brilliant analysis.
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- Monarch818, 3 Mar 2014 @ 12:53pm
  
  Re: What is there to consider? The judge was absolutely right.
  So AC, I was an extra in a number of movies and TV shows back in the mid-90's. With the precedent from this decision, I'd be able to sue to pull down any movie or TV show that I was in, until such a time I was edited out of the film or TV show. And believe me, that was quite a few of them!!!
  [ link to this | view in chronology ]
  - Anonymous Coward, 3 Mar 2014 @ 12:56pm
    
    Re: Re: What is there to consider? The judge was absolutely right.
    If it can be proven that you were in them, then obviously yes it would be fine.
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    - Anonymous Coward, 3 Mar 2014 @ 1:08pm
      
      Re: Re: Re: What is there to consider? The judge was absolutely right.
      um, no.
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      - Anonymous Coward, 3 Mar 2014 @ 2:57pm
        
        Re: Re: Re: Re: What is there to consider? The judge was absolutely right.
        Brilliant counter-argument. You're right someone who was in a piece of content shouldn't have the right to decide what happens to it. /rolleyes
        [ link to this | view in chronology ]
        
        Anonymous Coward, 3 Mar 2014 @ 3:49pm
        
        Re: Re: Re: Re: Re: What is there to consider? The judge was absolutely right.
        Are you talking about a fantasyland where you are making up rules about what "should" be? If so, that's a different conversation than the one about this actual court ruling.
        [ link to this | view in chronology ]
    - John Fenderson (profile), 3 Mar 2014 @ 1:22pm
      
      Re: Re: Re: What is there to consider? The judge was absolutely right.
      Based on what theory?
      [ link to this | view in chronology ]
  - Anonymous Coward, 3 Mar 2014 @ 1:07pm
    
    Re: Re: What is there to consider? The judge was absolutely right.
    You could sue, but you would lose unless you could show that they didn't have your permission to use your performance.
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    - Monarch818, 3 Mar 2014 @ 1:24pm
      
      Re: Re: Re: What is there to consider? The judge was absolutely right.
      Well, in at least one of the performances, in a VERY Major Motion Picture release, I was in the movie for a few minutes. I was paid to be a stand-in for myself. I still have the call sheet and pay stub, showing I was a stand-in for myself in the movie. I had no lines, but you do get to hear me grunt in pain. So, technically, I could prove they had no permission to use my performance, as I only got paid to be a stand-in, and not actually be filmed in the movie. And yes the movie has grossed over $122,000,000.00 worldwide since 1997.
      [ link to this | view in chronology ]
      - Anonymous Coward, 3 Mar 2014 @ 1:32pm
        
        Re: Re: Re: Re: What is there to consider? The judge was absolutely right.
        I think your facetiousness demonstrates your understanding that this ruling doesn't really give you, 99.99% of other performers/extras/etc., a valid suit.
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      - Pragmatic, 4 Mar 2014 @ 2:53am
        
        Re: Re: Re: Re: What is there to consider? The judge was absolutely right.
        Well, in at least one of the performances, in a VERY Major Motion Picture release, I was in the movie for a few minutes. I was paid to be a stand-in for myself.
        
        Good for you, but you don't get to sue them if you subsequently decide you're not happy with the way you were portrayed because you don't have a copyright interest in the film.
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Anonymous Coward, 3 Mar 2014 @ 11:48am

Only in America could judges be accepted as "entertaining".
That is not a good thing.
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- PRMan, 3 Mar 2014 @ 12:18pm
  
  Re:
  I agree. Judges should be sober, not entertaining.
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  - DannyB (profile), 3 Mar 2014 @ 1:33pm
    
    Re: Re:
    > Judges should be sober, not entertaining.
    
    Judges should be required to be sober.
    
    Especially if they are making important decisions with serious consequences. We expect no less from automobile drivers.
    
    Judges especially should be sober (including drugs) if they are going to punish other people for taking those very same or similar drugs.
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- Anonymous Coward, 3 Mar 2014 @ 12:47pm
  
  Re:
  "Only in America could judges be accepted as "entertaining".
  That is not a good thing."
  
  As long as you keep them entertained, American's don't care much about the rest. They'll even elect professional entertainers as presidents.
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Glen, 3 Mar 2014 @ 11:52am

Apparently the judge has gonna all in on asshat.
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- Anonymous Coward, 3 Mar 2014 @ 11:56am
  
  Re:
  Random person on a blog vs. judge who studied law all his life.
  
  Yeah, I think I'll take the judges side on this.
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  - That One Guy (profile), 3 Mar 2014 @ 11:59am
    
    Re: Re:
    Actually reading the article would probably help with that foot-in-mouth problem you seem to have.
    
    ' While there are some lawyers who seem to think that Kozinski's ruling makes sense, there are tons who disagree, including many of the top copyright experts in the field.'
    [ link to this | view in chronology ]
    - This comment has been flagged by the community. Click here to show it
      
      Anonymous Coward, 3 Mar 2014 @ 12:00pm
      
      Re: Re: Re:
      Ah, yes. Those great anonymous "top copyright experts" are truly such a remarkable source of knowledge.
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      - Andrew Norton (profile), 3 Mar 2014 @ 12:22pm
        
        Re: Re: Re: Re:
        Did you RTFA?
        Specifically, there was a link about 4 words earlier about how some thought it good. If you'd clicked it, you'd have gone to a piece called "Hollywood Experts Divided on Implications of 'Muslims' Ruling"
        
        In it, it cites a number of experts who thought it bad, therefore they're no longer 'anonymous' are they?
        
        To help you out, I'll even list them.
        �It is a terrible ruling,� said UCLA School of Law professor Neil Netanel.
        �This is clearly an ends-driven opinion,� countered Davis Wright�s Alonzo Wickers, who represents content creators and distributors.
        University of Maryland law professor James Grimmelmann was blunt. �It�s amateur hour at the Ninth Circuit,� he said.
        James Janowitz, chair of the entertainment group at New York�s Pryor Cashman, said �sometimes people will twist themselves into a pretzel� to reach a desired decision. Janowitz represents production companies and networks.
        
        That help any? A little less 'anonymous' now? And all you had to do was click the provided reference.
        Amazing.
        [ link to this | view in chronology ]
        
        This comment has been flagged by the community. Click here to show it
        
        Anonymous Coward, 3 Mar 2014 @ 12:33pm
        
        Re: Re: Re: Re: Re:
        Well then I can get a bunch of "experts" that claim the sun is green, but that doesn't make it true......
        [ link to this | view in chronology ]
        
        ottermaton (profile), 3 Mar 2014 @ 12:55pm
        
        Re: Re: Re: Re: Re: Re:
        Well then I can get a bunch of "experts" that claim the sun is green, but that doesn't make it true......
        
        Ok, then, whenever you're to ready to trot out those experts we're all ears.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 3 Mar 2014 @ 12:57pm
        
        Re: Re: Re: Re: Re: Re: Re:
        Thanks for proving how ridiculous the argument about "experts" was.....
        [ link to this | view in chronology ]
        
        Anonymous Coward, 3 Mar 2014 @ 1:04pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        Except these experts aren't arguing about the color of the sun.
        
        Nice try though...are you a new troll or just a reinvented old one?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 3 Mar 2014 @ 2:58pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        It's the same thing; they're experts because the opinion of the article deemed that they be.
        
        Sorry but the word of a judge who actually practices law is greater than a blowhard pundit any day.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 3 Mar 2014 @ 3:18pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        The "word of a judge who actually practices law" does not in any way, make his word infallible. (The fact that the original order needed to be amended illustrates this fact).
        [ link to this | view in chronology ]
        
        ottermaton (profile), 3 Mar 2014 @ 1:48pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        Thanks for proving how ridiculous the argument about "experts" was.....
        
        Whoooooooosh! hahaha
        
        Yes, your argument is ridiculous.
        [ link to this | view in chronology ]
        
        Andrew Norton (profile), 3 Mar 2014 @ 1:07pm
        
        Re: Re: Re: Re: Re: Re: Re:
        When he shows the claims about the sun being green, I hope he doesn't forget to include a way to gauge their expertise in solar spectroscopy.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 3 Mar 2014 @ 1:03pm
        
        Re: Re: Re: Re: Re: Re:
        Please do exactly that...it would help the rest of us identify the retards in this field (and subsequently avoid them).
        [ link to this | view in chronology ]
        
        techflaws (profile), 3 Mar 2014 @ 10:16pm
        
        Re: Re: Re: Re: Re: Re:
        "Well then I can get a bunch of "experts" that claim the sun is green, but that doesn't make it true......"
        
        Neither does one judge claiming it's a copyright issue.
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      - techflaws (profile), 3 Mar 2014 @ 10:14pm
        
        Re: Re: Re: Re:
        Ah, yes. Those great anonymous "top copyright experts" are truly such a remarkable source of knowledge.
        
        As opposed to a truly clueless anonymous moron? Yeah, I thinkt I'll take the coyright expert's side on this.
        
        See, argument from authority cuts both ways.
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    - Anonymous Coward, 3 Mar 2014 @ 12:43pm
      
      Re: Re: Re:
      Funny how the Techdirt article fails to mention that the foremost copyright scholar in the country, David Nimmer, agrees with the ruling, yet the article it cites makes that clear.
      
      Now, David Nimmer isn't God, but a lot of judges treat him as if he were when they write copyright opinions.
      
      If you're going to focus on what the "top copyright experts in the field" think, you might want to know that.
      [ link to this | view in chronology ]
      - Andrew Norton (profile), 3 Mar 2014 @ 12:55pm
        
        Re: Re: Re: Re:
        It's not as clear-cut as that.
        
        Nimmer � who also teaches at UCLA and is of counsel at Irell & Manella � told THR that he agrees with the decision, although he added that the facts of the case were �as squirrely as you could imagine.�
        
        Is what it says. Sounds like a personal agreement with the ruling, but the last line indicates he's not sure if it agrees legally.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 3 Mar 2014 @ 1:11pm
        
        Re: Re: Re: Re: Re:
        He said he agrees with the decision. How does the wackiness of the facts detract from that, or mean "not legally" in your mind?
        [ link to this | view in chronology ]
  - Anonymous Coward, 3 Mar 2014 @ 12:04pm
    
    Re: Re:
    Breaking News: Judges are infallible, except until 5 minutes later when you disagree with one.
    [ link to this | view in chronology ]
  - Anonymous Coward, 3 Mar 2014 @ 12:38pm
    
    Re: Re:
    judge who studied law all his life.
    Yeah, I think I'll take the judges side on this
    
    Except what the Judge has 'studied' all his life doesn't matter - the only thing that is to matter is what is put before the Judge in the case.
    [ link to this | view in chronology ]
  - Andrew Norton (profile), 3 Mar 2014 @ 1:03pm
    
    Re: Re:
    judge who studied law all his life.
    
    Wow, thats' quite an achievement. So he was studying US law in Bucharest, before he moved to the US aged 12 in 1962?
    In reality he didn't even START studying law until he was 22, and since he's now 63, that's a large chunk of life he wasn't studying law there.
    At best 'studied law 2/3 of his life'
    [ link to this | view in chronology ]
Anonymous Coward, 3 Mar 2014 @ 12:02pm

this is an awesome ruling.

now, any 2nd rate actor who has a bad role can perform, make the movie, and then when criticized for the bad acting, can sue to have the film removed from our memories.

Just like in summer soccer camp, we will have no more mediocrity. everyone gets a trophy! and, if not - then no one enjoys the movie.

yay!
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- Anonymous Coward, 3 Mar 2014 @ 12:44pm
  
  Re:
  It is obvious that you didn't read the ruling (or didn't understand it), because the ruling specifically says that is not the case.
  [ link to this | view in chronology ]
Anonymous Coward, 3 Mar 2014 @ 12:24pm

"makes sense" has a link, but "tons" does not. Any link to the latter, as well as the experts in the field who disagree with the court's decision?

It is helpful to bear in mind that the plaintiff's participation in the film project was for a different film entirely. Fraud in the inducement did figure into the court's calculus, and not just copyright law.
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- Anonymous Coward, 3 Mar 2014 @ 12:46pm
  
  Re:
  The article linked for "makes sense" includes some quotes from scholars who disagree.
  [ link to this | view in chronology ]
  - Anonymous Coward, 3 Mar 2014 @ 2:39pm
    
    Re: Re:
    True, but "some" is not to my mind the equivalent of "tons".
    [ link to this | view in chronology ]
    - Anonymous Coward, 3 Mar 2014 @ 2:58pm
      
      Re: Re: Re:
      Well, sure. I'm not going to call Techdirt a spin free zone. The article plays up the criticism and downplays the support.
      [ link to this | view in chronology ]
      - techflaws (profile), 3 Mar 2014 @ 10:19pm
        
        Re: Re: Re: Re:
        Or not.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 4 Mar 2014 @ 9:40am
        
        Re: Re: Re: Re: Re:
        The TD article says "some" support the ruling and "tons" disagree. The article it cites does not really indicate greater support or greater disagreement. This is playing up the disagreement and downplaying the support.
        
        The TD article refers to those who agree with the ruling as "lawyer" and those who disagree as "some of the top copyright experts in the field." The article it cites quotes the individual (David Nimmer) generally recognized as the foremost copyright scholar in the country, and a professor who wrote the most comprehensive journal article on the topic as one who agree with the ruling. Thus, the TD article emphasizes the credentials of those who disagree, while failing to provide any information about the stature of those who agree with the ruling.
        
        You can get a lot of good info from TD. But if you really think you are getting unbiased, spin-free coverage from TD, I urge you to think critically about that conclusion.
        [ link to this | view in chronology ]
- John Fenderson (profile), 3 Mar 2014 @ 1:25pm
  
  Re:
  If we're talking fraud, that's a different issue. The problem here is the complete misapplication of copyright law. The actor has no, zero, zilch, copyright interest in the film.
  [ link to this | view in chronology ]
  - Anonymous Coward, 3 Mar 2014 @ 1:27pm
    
    Re: Re:
    "The actor has no, zero, zilch, copyright interest in the film."
    
    Says John Fenderson. Two Ninth Circuit judges disagree (as do a couple of the foremost scholars in this area of law). At least in the sense that she has a copyright interest in her performance, and that is used in the film (thought the current 9th Circuit law agrees that he has no interest in the film as a whole).
    [ link to this | view in chronology ]
    - John Fenderson (profile), 3 Mar 2014 @ 4:06pm
      
      Re: Re: Re:
      Actually, it's not me that says it. It's the entire body of relevant case law before this decision that says it.
      [ link to this | view in chronology ]
      - Anonymous Coward, 3 Mar 2014 @ 5:27pm
        
        Re: Re: Re: Re:
        You can keep saying this, and I can keep asking for citations, but that won't get anyone anywhere.
        
        Do you have a case in mind?
        [ link to this | view in chronology ]
    - Pragmatic, 4 Mar 2014 @ 3:01am
      
      Re: Re: Re:
      But if that's true, so is this statement:
      
      now, any 2nd rate actor who has a bad role can perform, make the movie, and then when criticized for the bad acting, can sue to have the film removed from our memories. - AC @ 12:02pm
      
      Which is why I advocate buttering the proverbial popcorn, as this is likely to bring in the MAFIAA on our side in an amicus brief to protect their interests.
      
      Consider the possibility of a young woman who takes part in a raunchy rap video. She subsequently gets religion and is profoundly embarrassed by her performance so she sues to get the entire video taken off the internet, etc.
      
      But worry not, dear friends, the video can still exist, but with her performance excised. Of course, if she's featured as part of a group of dancers, they'll have to either pixellate her or re-make the video.
      
      Naturally, the original will still be floating around somewhere...
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      - Anonymous Coward, 4 Mar 2014 @ 9:43am
        
        Re: Re: Re: Re:
        In such a case, the use of her image would be covered by her implied license. This is not a case of someone later changing their mind. This is a case of a producer misleading someone from the start.
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Anonymous Coward, 3 Mar 2014 @ 12:40pm

I wonder what else this applies to. Can people who show up in news reports claim copyright on it and take it down, even if their role is walking in the background for a few seconds?
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ottermaton (profile), 3 Mar 2014 @ 12:58pm

From the article: Kozinski, unfortunately, is not exactly known for his humility.

Seriously? Can you name any judge that even has the smallest trace of humility? I've often wondered what kind of ego it must take to hold a position where it's your job to make decisions that can absolutely destroy lives
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BSD32x (profile), 3 Mar 2014 @ 1:14pm

@ The Anonymous Coward who seems to be channeling OOTB:

The LA Times has just done a nice write up on this where they quoted several credible experts. By all means have a read before attacking Mike's credibility or completely misunderstanding that Kozinski was only able to take advantage of a very questionable loophole because this was an independent production which did not use the standard Hollywood contracts.: "Hollywood studio executives say they're not worried about the implications of the ruling. That's because their contracts stipulate that actors are working for hire, which means they have no copyrights, and that even if they weren't working for hire, they assigned their copyrights to the production company.

"Tech advocates were not so sanguine.

"Based on this ruling, anyone who contributes creative expression to a larger copyrighted work potentially may have an independent copyright claim against the work's distribution and performance," opined Andrew McDiarmid of the Center for Democracy & Technology. "In the case of a movie, for example, adjudicating these claims would require careful case-by-case examination of the contract, written or oral, between each bit player and the moviemakers. Beyond that, moreover, the notion that an individual actor may have a copyright interest in her performance poses huge problems in the context of the DMCA's notice-and-takedown provisions."

Wrote Corryne McSherry of the Electronic Frontier Foundation: "Garcia is claiming a copyright interest in her brief performance, a novel theory and one that doesn't work well here. After all, Garcia herself admits she had no creative control over the movie, but simply performed the lines given to her. There may be a context where an actor could assert some species of authorship, but this doesn't seem to be one of them. Moviemakers of all kinds should be worried indeed."

http://www.latimes.com/opinion/opinion-la/la-ol-movie-copyrights-oscars-innocence-of-muslims -20140228,0,5519407.story
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- Anonymous Coward, 3 Mar 2014 @ 1:25pm
  
  Re:
  You are right that this ruling won't apply to the vast majority of performers and films out there. But I think that's one reason why a lot of the commentary overhyping how "horrific" the ruling is is off base.
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  - BSD32x (profile), 3 Mar 2014 @ 1:30pm
    
    Re: Re:
    I don't think you're grasping what the point of McDiarmid's argument here is. All that needs to happen is for this precedent to be set, and it opens the Pandora's gate of DMCA notices. So it doesn't technically apply to the vast majority, but it enables pretty much anyone who has ever appeared in a film to file a DMCA takedown. Now, you might say "But there is a contract in place that would be examined at the surely occuring hearing to review the DMCA takedown!" In what world is that actually going to happen? There are no reprecussions for invalid DMCA takedown requests, and no venue in which to have an appeal heard.
    
    So the short answer is that yes, if we are talking a civil copyright suit (and we all know how well those are handled based on Malibu Media, Prenda, etc.) this would not be as horrific. But in terms of suppression of speech, the consequences are very serious.
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    - Anonymous Coward, 3 Mar 2014 @ 1:35pm
      
      Re: Re: Re:
      I'm sure I don't grasp his point, since I didn't read the linked article, just your post.
      
      If the argument relies on the fact that there is de facto impunity for sending false DMCA notices, how does this ruling change anything? People could send BS notices before and after this ruling, and could continue doing so if it is overturned en banc or on appeal to the Supreme Court.
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      - BSD32x (profile), 3 Mar 2014 @ 1:42pm
        
        Re: Re: Re: Re:
        You're pretending that even as flawed as the DMCA takedown process is, there is no distinction between me arbirtraily filing a notice against a Mel Gibson film than if perhaps some extra did not agree Mel's theological stance in the film and believed they were misled. Eric Goldman has an in depth explanation on his blog, you might want to give it a read to better understand this. http://blog.ericgoldman.org/archives/2014/02/in-its-innocence-of-muslims-ruling-the-ninth-circuit-is -guilty-of-judicial-activism-garcia-v-google.htm
        
        Here is the most pertinent part: "Finally, what to make of the free speech implications of this ruling? It�s certainly surprising to see a First Amendment stalwart such as Kozinski casually refer to the Garcia�s dialogue as �fighting words,� and to place such heavy reliance on the threats Garcia received. Compare the tone of this ruling with Kozinski�s opinions in cases such as City of Norse, where he take a much firmer and almost contemptuous stance on the ability of those offended to impose restrictions on speech. Given the well-documented efforts of censorship that use copyright as a proxy, it�s unfortunate Chief Judge Kozinski did not make the connection between the two. I wouldn�t go so far as to say that anyone who issues a DMCA takedown request is a censorious thug, but here, the connection between the actions of those who disagreed with the message and the resulting pressure on Garcia to try to get the video pulled were well documented. This starts to look a whole like a variation on the heckler�s veto. It�s certainly not very speech friendly to take an expansive view of copyright in connection with takedown requests that are prompted by threats of violence. What�s next? Someone who issues a widely ridiculed religious pronouncement starts to issue DMCA takedown notices directed at articles critiquing and poking fun at the pronouncement?"
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        Anonymous Coward, 3 Mar 2014 @ 1:49pm
        
        Re: Re: Re: Re: Re:
        A very results-oriented analysis, but that doesn't make the copyright analysis in the court's opinion wrong.
        
        Might this ruling result in an incremental increase in the amount of bogus DMCA notices sent? Perhaps, though I'm certainly not convinced of that.
        
        At any rate, that's a problem to be addressed with the DMCA, not by changing the court's substantive analysis on authorship and copyright ownership, or its substantive analysis of the limits of an implied license.
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        BSD32x (profile), 3 Mar 2014 @ 1:53pm
        
        Re: Re: Re: Re: Re: Re:
        I'm just not buying your argument here. Goldman's analysis isn't "results oriented", it's legal precedent oriented. And the "court's substantive analysis"? Substantive based on what, you yourself directed people to read the ruling, which is itself very light on references to prior cases. I would call it the court's opinionative analysis, certainly, but people who rely on opinion are legal advocates and have no place on the bench.
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        Anonymous Coward, 3 Mar 2014 @ 2:03pm
        
        Re: Re: Re: Re: Re: Re: Re:
        You seem to be focusing on the "result" that more DMCA take down notices could be sent. That might be a negative result, but it is tertiary to the issue of who owns a copyright interest. That's my point regarding "substantive analysis." The court was tasked with determining whether the plaintiff owned a copyright interest. The court shouldn't say, "well, I don't like the potential results if we think she has a copyright interest, so I'll say she doesn't." The court has to determine the issue at hand.
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        That One Guy (profile), 3 Mar 2014 @ 2:10pm
        
        Re: Re: Re: Re: Re:
        What�s next? Someone who issues a widely ridiculed religious pronouncement starts to issue DMCA takedown notices directed at articles critiquing and poking fun at the pronouncement?"
        
        Already happening actually, here's a few examples from past articles:
        
        http://www.techdirt.com/articles/20130914/11315824516/pat-roberston-abuses-dmca-failed-atte mpt-to-censor-those-mocking-his-ridiculous-claims-about-gays-purposely-spreading-aids.shtml
        
        http://ww w.techdirt.com/articles/20130814/09424724172/more-copyright-censorship-straight-pride-group-uses-dmc a-to-take-down-their-own-responses-to-reporter.shtml
        
        http://www.techdirt.com/articles/20130129/035845 21813/copyright-as-censorship-birth-blogger-fight-goes-legal-over-dmca-abuse.shtml
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Uriel-238 on a mobile device (profile), 3 Mar 2014 @ 2:36pm

Appeal to authority much?
A man being a judge neither makes him infallible nor necessarily right, and by accepting Kozinski's position based solely on his credential of jurist, I'd say you're too ignorant or too apathetic to have a valid opinion.

Speaking as one who is completely ignorant of Kozinski's entertaining antics, he sounds like someone who would uphold a prior ruling purely out of personal insecurity of maybe being wrong.

Hopefully other jurists will be allowed to overrule.
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OnTheOtherHand, 3 Mar 2014 @ 2:59pm

If his reading is shown to be valid (I said if) then perhaps the law needs revisiting and this will add fuel to that fire.
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Anonymous Coward, 3 Mar 2014 @ 4:09pm

At this point there are 74 comments plus the article which have all missed the point.

Does a person have the right to make movies, publications and comments which are in full compliance with all western law have the right to start a war in the Middle East and throughout the Muslim world?

What about the fact that at least one Muslin country, Pakistan, is nuclear armed?
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- Anonymous Coward, 3 Mar 2014 @ 6:24pm
  
  Re:
  missed the point.... start war... nuclear weapons.
  
  Did. Not. See. That. Coming.
  
  Article:
  Copyright..law..injunction...prior restraint... free speech...stay denied.... NUCLEAR WAR WITH PAKISTAN!
  
  oh gods now I need to go clean up the coffee I snorted.
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- Anonymous Coward, 3 Mar 2014 @ 7:41pm
  
  TLDR: File "innocence" in made-by-jerk basket, ignore, let god take care of him later, dont start war with Pakistan.
  Me again.... now the coffee is cleaned up.
  
  TLDR: You should file "innocence" in made-by-jerk basket, ignore, let god take care of him later, don't start war with Pakistan.
  
  If you have a point to raise - go for it... by why assume we missed it? maybe we saw it, judged it, dismissed it and moved on? (see what I did there?)
  
  Let me ask you a question - why does your right not to be offended trump our right to say things you don't like? Why must you start a war over what someone else said? Is your right better than our right?
  
  I'm going to assume you're Muslim of some sort and hence the belief that they should not have done whatever offended you because you believe in some god who said don't do this. So... that makes a valid law for believers but does it make it valid for unbelievers or does you god not care what they do cause by definition they don't believe hence the end up in hell (or whatever)???
  
  Does your god law say you must enforce your god law on unbelievers or only believers? What about their god laws? Should they not then enforce theirs on you?
  
  Can you even see where this ends???
  
  Your point opens up the most interesting Theological & Ethical debates that Philosophers from all beliefs, races & lands have been arguing over for centuries if not millennia.
  While I would enjoy such a debate I must point out it is mostly off-topic (like the point we all missed except you) so maybe would deserve it's own blog post, or blog, or wiki, or university courses or... well hopefully you didn't miss my point :)
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- techflaws (profile), 3 Mar 2014 @ 10:23pm
  
  Re:
  Absolutely. Cause he's NOT starting the war but some jackasses who can't just can't handle different point of views.
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- Anonymous Coward, 4 Mar 2014 @ 8:11am
  
  Re:
  If there are people in the world who are so delusional as to hear their god saying "go to war" over a movie, then perhaps that points to a more fundamental problem with their god, rather than an issue with the movie.
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Anonymous Coward, 3 Mar 2014 @ 7:05pm

I think we should run with this if 5 seconds is copyrightable , then we can issue DMCA removals of our metadata and private information that the NSA and bigdata have collected.
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Steve Day (profile), 4 Mar 2014 @ 8:09pm

Lookout Disney - I'm coming for ya!
This stupid ruling means that I can immediately prevent Disney from showing or selling "Star Wars Episode I"... You see, back in 1997, I was a background actor in the movie and being a lifelong star Wars fan I felt very betrayed/disappointed when the final movie was released.

So thanks to this knob-of-a-judge, precedence has been set making it legally possible for me to give Jar-Jar Binks a good beating with a gavel. Yay!
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- Anonymous Coward, 5 Mar 2014 @ 10:43am
  
  Re: Lookout Disney - I'm coming for ya!
  I wonder how many more "this ruling means [something it absolutely does not mean]!" posts we'll get.
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