Kozinski Doubles Down On Ridiculous Garcia Ruling, But Hints At How District Court Could Correct Most Of His Mistakes

from the what-the-actual...? dept

Fri, Jul 11th 2014 11:58am — Mike Masnick

Things had been a bit quiet on the Garcia v. Google front for the past few months. As you may recall, this was the ridiculous legal fight, in which an actress, who was in the infamous "Innocence of Muslims" film, sued Google for not taking down the video after she made a copyright claim on it. The district court rightly laughed that argument out of court, noting that as an actress in the film, she had no copyright interest in the film. However, in a move that left nearly everyone in the copyright world scratching their head, on appeal, famed judge Alex Kozinski basically made up an entirely new section of copyright law to say that she did, in fact, have a copyright interest in her role in the film, and that because of that, Google was ordered to remove every copy of the entire film from its sites and that Google couldn't talk about it for a period of time.

Once all this came out there was an immediate uproar and a variety of challenges. Kozinski shot down an emergency motion to stay the ruling, but did amend the original order to admit that copies of the video without the scene including Cindy Lee Garcia could remain up on the site. Still, another judge on the court actually asked the entire court to reconsider, and Google asked the entire court to reconsider the entire case, leading a whole bunch of folks to weigh in -- all on the side of Google. Even we weighed in in a filing written by lawyer Cathy Gellis, highlighting how Congress clearly intended to protect intermediaries from liabilities in situations like this.

Things had been entirely silent on the case for a really long time, but this morning, the court issued "an amended opinion," which appears to be Kozinski both doubling down on his original, ridiculous ruling while at the very same time offering a bunch of outs for the lower court to fix what Kozinski himself totally screwed up. It's the most bizarre type of tap dancing you'll see in a judicial ruling in a long time. Basically, for all of the arguments that show why Kozinski is wrong, he just puts his arms up and says "hey, no one raised that issue, so we ignored it."

Nothing we say today precludes the district court from concluding that Garcia doesn’t have a copyrightable interest, or that Google prevails on any of its defenses. We note, for example, that after we first issued our opinion, the United States Copyright Office sent Garcia a letter denying her request to register a copyright in her performance. Because this is not an appeal of the denial of registration, the Copyright Office’s refusal to register doesn’t “preclude[] a determination” that Garcia’s performance “is indeed copyrightable.” .... But the district court may still defer to the Copyright Office’s reasoning, to the extent it is persuasive....

After we first published our opinion, amici raised other issues, such as the applicability of the fair use doctrine..., and section 230 of the Communications Decency Act.... Because these defenses were not raised by the parties, we do not address them. The district court is free to consider them if Google properly raises them

That latter issue, of how Section 230 is relevant here, is the one that we raised in our brief, so it's nice that he "acknowledges" that it exists here, but this is still a pretty weak response.

Later, he does this again with the First Amendment argument. In the original, he totally dismissed any First Amendment questions with a breezy (and misleading) "the First Amendment doesn't protect copyright infringement." Here he tries to "clarify" that by admitting that "oh yeah, there's fair use," but it doesn't matter since Google didn't raise fair use:

“First Amendment protections are ‘embodied in the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas,’ and in the ‘latitude for scholarship and comment’ safeguarded by the fair use defense.” ... Google hasn’t raised fair use as a defense in this appeal, see page 11 supra, so we do not consider it in determining its likelihood of success. This does not, of course, preclude Google from raising the point in the district court, provided it properly preserved the defense in its pleadings.

Of course all of this ignores the basic fact that none of those arguments made sense at all because it was absolutely ridiculous to argue that an actress had a copyright interest in a film in the first place. It's long been established that that's simply not true. Furthermore, as the new dissent snarkily points out in a footnote, Kozinski's desire to avoid addressing these rather obvious flaws in his own argument are pretty damning:

The majority’s amended opinion also attempts to hedge its conclusion that Garcia has a copyright interest in her acting performance by avoiding counter arguments it failed to address, because they were not raised by the parties. Maj. op. at 11, 19. Yet, the majority could consider these arguments sua sponte “under exceptional circumstances, where substantial public interests are involved, or where to not do so would be unduly harsh to one or both of the parties.” ... The majority’s failure to even engage this inquiry, instead quickly dismissing arguments against its view, confirms its error

This amended ruling is a bizarre look into the mind of Judge Kozinski. He seems to recognize that he messed up royally in the original decision... but he's too proud to let it go. So, instead, he's basically doubling down on his original, questionable reasoning, while adding in all these ways that the impact of his own terrible decision might effectively be minimized, if only people raised a variety of defenses that shouldn't have mattered in the first place, if Kozinski hadn't read the law so incredibly wrong. Even if it does go back to the district court, and the court rules correctly under Kozinski's "new" rules, the original precedent would still stand.

Of course, this process isn't even close to over. The ruling notes that the court is still considering an en banc rehearing with a larger panel of judges from the 9th Circuit, who would hopefully overrule Kozinski entirely, and drop this horrible precedent. But, for now, we have to wait, and live with Kozinski's unwillingness to admit to his mistakes.

12 57302 Amended Opinion 7 11 (PDF)12 57302 Amended Opinion 7 11 (Text)

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Filed Under: 9th circuit, alex kozinski, cindy garcia, cindy lee garcia, double down, garcia v. google, intermediary liability, takedowns
Companies: google, youtube

26 Comments

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Anonymous Anonymous Coward, 11 Jul 2014 @ 12:12pm

Quandary
So many eggs. So little face.
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- art guerrilla (profile), 11 Jul 2014 @ 1:40pm
  
  Re: Quandary
  that was a good one...
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Anonymous Coward, 11 Jul 2014 @ 12:23pm

Pride has no place in law.
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John85851 (profile), 11 Jul 2014 @ 12:34pm

Oops
Or what this judge really means to say: "I made a mistake and I don't want to admit it, so I'll twist the laws to fit my interpretation to save face."
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Anonymous Coward, 11 Jul 2014 @ 12:35pm

So much for unbiased judges and fair rulings. When a judge can't admit he is wrong, what chances are there for anyone else showing up in his court to get that fair ruling, especially if it violates his sense of pride?

Thank heavens he isn't in a criminal law court with hanging still as the capital punishment. You'd never have a chance to hear from the victim he was wrongly accused.

If nothing else, this judge has shown his metal and is not fit to continue on in serving as a court judge.
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- art guerrilla (profile), 11 Jul 2014 @ 1:42pm
  
  Re:
  if by showing his 'metal' you mean his terminator titanium skeleton, then you are right...
  if you mean 'mettle', that's a different word...
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- Anonymous Coward, 11 Jul 2014 @ 4:08pm
  
  Re:
  Not admitting that a judicial rulings was a bad one is called building precedence.
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Anonymous Coward, 11 Jul 2014 @ 1:03pm

So basically he said, "You didn't presciently prepare and present defenses that took into account my bizarre misinterpretation of copyright law, therefore, any arguments pointing out that my bizarre misinterpretation of copyright should be nixed are invalid at this point."

Well, excuse Google's lawyers for naively expecting that a judge ruling on a copyright case might actually apply copyright law as it's written.

This defense of his ruling should fit right next to the Chewbacca defense on the scale of absurd legal arguments.
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Anonymous Coward, 11 Jul 2014 @ 1:04pm

I used to think Kozinski would make for an excellent Supreme Court justice. Not anymore.
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DannyB (profile), 11 Jul 2014 @ 1:06pm

Wanna bet?
> The ruling notes that the court is still considering an en banc rehearing
> with a larger panel of judges from the 9th Circuit, who would hopefully
> overrule Kozinski entirely, and drop this horrible precedent.

Given how the world is going these days, I think the 9th circus could not only uphold Kozinski, but make up some additional new copyright law on its own.

Sanity in the world is decreasing daily.

Think it can't happen? (Corporations are people. Money is speech. No limits on corporate political spending. If Aereo looks like a duck.)
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- Mike Masnick (profile), 11 Jul 2014 @ 3:06pm
  
  Re: Wanna bet?
  , I think the 9th circus
  
  Did you call it 9th circus on purpose or was that a Freudian slip? Either way, good one!
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  - Anonymous Coward, 11 Jul 2014 @ 4:01pm
    
    Re: Re: Wanna bet?
    It is not the first time I have people "misspell" it in this comment sections. Could be either way.
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    - Anonymous Coward, 11 Jul 2014 @ 4:28pm
      
      Re: Re: Re: Wanna bet?
      You have people misspell words in comments sections? How do you do that? Do you pay them or s.th.?
      [ link to this | view in chronology ]
      - orbitalinsertion (profile), 12 Jul 2014 @ 3:51am
        
        Re: Re: Re: Re: Wanna bet?
        Yes, anonymous dude pays the Sith to do it. They are a mirthful bunch of jokers. For a price.
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That One Guy (profile), 11 Jul 2014 @ 1:25pm

A new test of office
I think a new test should be added, for anyone looking to serve in any public office and/or position. Before someone is allowed to take the job, they should be forced to publicly admit to being wrong about something.

Doesn't have to be anything huge, it just has to be something non-trivial, and be a real apology('I'm sorry you were offended' for example would not count).

Somehow I think the vast majority of people currently in public office, from politicians, to cops, to judges, would completely and utterly fail a test like this.
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Anonymous Coward, 11 Jul 2014 @ 2:00pm

Doesn't have to be anything huge, it just has to be something non-trivial, and be a real apology('I'm sorry you were offended' for example would not count).

Also, no jokes in the style of "I'm wrong all the time. Just ask my wife."
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Whatever (profile), 11 Jul 2014 @ 5:03pm

I think the judge is doing everyone a good service on this one. He is pointing out that his ruling was based on what he had presented in front of him. Nobody argued the other points, and he is allowing that these may be valid arguments to be reconsidered. He cannot easily reverse his own judgement based on material that was not part of the original case, but he can certainly suggest a line of legal logic for the next step in the case.
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- Anonymous Coward, 11 Jul 2014 @ 10:20pm
  
  Re:
  Just because you're offering solutions to clean up your mess does not absolve your idiocy in causing the mess to begin with.
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- techflaws (profile), 11 Jul 2014 @ 11:12pm
  
  Re:
  And his conclusions based on those points presented were entirely wrong.
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  - Whatever (profile), 12 Jul 2014 @ 3:54am
    
    Re: Re:
    It's entirely debatable. These are areas where the laws don't exactly fit together neatly like puzzle pieces, and the courts are forced to come up with judgments to fill in the often sizable gaps. In this case, you have copyright on one side, validity of a model release on the other, personal reputation on another, and of course, who ends up in control in that situation.
    
    DMCA was likely not the correct remedy, but was expedient. However, it was likely used incorrectly because the issue of copyright had yet to be settled. The judge really should have issued an injuction (to stop any further harm) pending the completion of legal action in regards to the validity of her model release and participation in the film.
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    - techflaws (profile), 12 Jul 2014 @ 9:58pm
      
      Re: Re: Re:
      Actually, this area has been settled AGES ago: an actor has NO copyright interested in the movie he acted in. Just because that particular judge doesn't get it, doens't mean anyone else's confused about it too.
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      - Whatever (profile), 14 Jul 2014 @ 12:49am
        
        Re: Re: Re: Re:
        It is settled only if the model release / contract is valid and was not obtained by false pretense or outright fraud. If you don't have the rights for the person to be in the film, then the film cannot be distributed - the person owns the rights to their image and it's use.
        
        As I said, was DMCA the right way to do this? Probably not. However, this case really boils down to the way the actress was apparently mislead into appearing a movie that she objects to on a personal level.
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        John Fenderson (profile), 14 Jul 2014 @ 7:57am
        
        Re: Re: Re: Re: Re:
        "However, this case really boils down to the way the actress was apparently mislead into appearing a movie that she objects to on a personal level."
        
        That's right, which means it's not actually a copyright issue. It's a fraud issue.
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        techflaws (profile), 15 Jul 2014 @ 10:11pm
        
        Re: Re: Re: Re: Re:
        Still NO copyright issue (not that I believe her story anyway).
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Anonymous Coward, 11 Jul 2014 @ 7:16pm

as it seems just about impossible to keep the stupid woman quiet, perhaps it would be better to take the next best option and have a judge with some knowledge of the law, as well as the internet, sit on the bench when considering such cases? since when has it been 'OK' to ignore parts of the Constitution and Bill of Rights, just because they are not raised in defense? what would the idiot have ruled if it were a murder trial and the person was gassed because no one said he wasn't guilty? bloody ridiculous!!
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Anonymous Coward, 13 Jul 2014 @ 8:13am

Kozinski has become the best example of why federal judges should have limited terms, say of 25 years. For most judges, that is equivalent to life tenure and would protect them from undue influences. It would not allow someone's ego to grow beyond all bounds.
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