[x-pubpol] Secret 'Innocence of Muslims' Order Caused Google to Go Ballistic

[Joly MacFie]

http://www.hollywoodreporter.com/thr-esq/secret-innocence-muslims-order-caused-683895

Earlier today, the 9th Circuit Court of Appeals issued a shocking ruling by
determining thatInnocence of Muslims actress Cindy Lee Garcia could assert
a copyright interest in her performance in the film and that Google had to
remove the controversial anti-Islamic film from YouTube.

The opinion could usher in all types of new lawsuits from Hollywood
creatives over films, TV shows and other works that rely on joint
contributions. Notably, 9th Circuit Chief Judge Alex Kozinski rejected many
of Google's arguments, including that Garcia's performance was a work for
hire and that she made an implied license when agreeing to perform. As a
result, the ruling is not only a potential litigation bonanza for the
Hollywood plaintiff's bar, but ISPs will now have tough days ahead of them
in determining how to respond to copyright takedown notices from
individuals who, before today, might not have been presumed to hold any
interest in copyrighted material.

But that's all a matter for another day.

What has caused Google's ire was a highly unusual run-up to Wednesday's
ruling.


On Feb. 19, the 9th Circuit directed Google to take down all copies of
Innocence of Muslims from its platforms. What's more, the appellate circuit
issued an extraordinary gag order that required the parties not to talk
about it.

In response, Google filed under seal an emergency motion to stay the order
pending a rehearing en banc before a full panel of 9th Circuit judges. That
motion has become available and can be read in full here.
http://www.scribd.com/doc/209491860/Emergency-stay-Google

The web giant called the order removing Innocence of Muslims a "classic
incursion on the First Amendment," the gag order "extraordinary" and the
entire ordeal "stunning."

Google pointed out that the order to remove copies extended beyond copies
identified by Garcia and was broader than anything she has even requested.
A search for "Innocence of Muslims" on YouTube returned over 58,000
results, Google reported, and the 9th Circuit was told that such results
could contain commentary, news stories and other works that merely contain
some or all of the original video. Google also didn't understand the
rationale for going beyond the five seconds that Garcia appeared in the
movie to have the entire movie removed.

The 9th Circuit denied the emergency motion, and in today's ruling, two out
of three judges on a panel made clear they didn't see Garcia's contribution
as de minimis.

And so, the dispute continues.

Judge Kozinski has ordered the film off of Google and remanded the case
back to a district court, but if last week's motion by Google is any guide,
the next step will be a highly charged motion for reconsideration at the
9th Circuit. That should bring a parade of amicus briefs. The MPAA and
SAG-AFTRA (and many of the leading technology companies) haven't yet
publicly commented on the matter, but it's almost unimaginable they won't
offer an opinion given the suddenly huge stakes of this case.

E-mail: Eriq.Gardner at THR.com
Twitter: @eriqgardner


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