Florida Family Association sent out
several email alerts to report that a 3 judge panel of the 9th US Circuit Court of Appeals had reversed a lower court order that denied a plaintiff’s demand that Youtube.com remove the controversial video
“Innocence of Muslims.”Defendant Google (owns Youtube.com) petitioned the appellate court to rehear the case en banc by all of the justices in the 9
th US Circuit.
Florida Family Association’s emails alerts encouraged readers to send emails urging the forty three 9th US Circuit Court of Appeals justices to affirm the First Amendment rights that all Americans cherish by reversing the panel’s troubled ruling and affirming the district court’s decision. The original email history is posted in part below.
Several American corporations and internet industry leaders subsequently filed Amicus Briefs asking the appellate court to rehear the case en banc and/or affirm the District Court’s finding that Ms. Garcia has no copyright to assert.
NETFLIX Amicus Brief states in part: Ms. Garcia’s claim thus rests on air: she has no underlying copyright to assert. But rather than accept the result of that analysis — that Mr. Youssef’s protected speech, odious as it may be, cannot be vetoed by Ms. Garcia suing YouTube — the majority opinion bends copyright to the breaking point to achieve rough justice, and then optimistically suggests that the damage it does will be limited to edge cases. Netflix does not share that optimism. Accordingly, Netflix joins Appellants in urging rehearing en banc, and affirmance of the District Court’s finding that Ms. Garcia has no copyright to assert.
Adobe Systems et al Amicus Brief states in part: Because the panel decision conflicts with established copyright law protecting online services from monitoring burdens, is overbroad and threatens First Amendment interests, and is unworkable as a practical matter and therefore dangerous to services, the Court should rehear the appeal en banc and vacate the decision and injunction.
Internet Law Professors Amicus Brief states in part: On its face, Garcia’s case is not about the “right to forget” historical truths, attempts to squelch political criticism, or attempts to scrub unflattering but protected commentary from review sites. Nevertheless, the legal arguments raised by Garcia in this case are virtually identical to the arguments made by plaintiffs who want to suppress the publication of truthful information about them in other contexts. Plaintiffs are already trying to turn copyright into a general-purpose tool to scrub truthful content, thwarting Congress’ intent in enacting Section 230’s immunity.
Google’s Petition for rehearing en banc states in part: The panel airbrushed this problem by suggesting that “copyright interests in the vast majority of films” are covered by contract and the work-for-hire doctrine. ADD11. But most of the millions of amateur filmmakers who upload videos to the Internet do not have bulletproof written agreements. And even for professional filmmakers, the majority’s assurances ring hollow. Although many try to obtain releases from participants, perfection is impossible and long-term retention and location of these agreements is often difficult. Stay Br. 36-37. The majority fell back on implied licenses. ADD13-15. But that creates its own difficulties. By shifting to a case-by-case implied-license regime with intent requirements and the like, the majority’s system allows actors to “claim copyright and set up a fact dispute that will be hard to predict and expensive to resolve.” Eric Goldman, In Its “Innocence of Muslims” Ruling, the Ninth Circuit is Guilty of Judicial Activism, Technology & Marketing Law Blog (Feb. 27, 2014). 6 That will put YouTube and services like it in an intractable bind. Faced with a takedown notice from a minor player in a film, platforms will need to either defer to the copyright claim or attempt the impossible task of untangling the chains of title for countless video clips. And although some services may choose to risk suits, they on balance “will err on the side of actors’ assertions rather than do the fact investigation.” Id. That understandable reticence will chill speech.
Clearly Corporate America is very concerned about the consequences of allowing the 3 judge panel’s ruling to stand. Their ruling could unearth countless frivolous claims in the future that are motivated to censor otherwise First Amendment protected speech. As Google states, rather than fight these claims in costly court battles, web sites will buckle under and remove the content being protested.
To follow this case at the 9th US Circuit Court of Appeals and/or read similar Amicus Briefs
click here.
Now the full 9th US Circuit Court of Appeals will reconsider the appeal from the district court as well as their panel's troubled ruling. They need to know that American's treasure their First Amendment and do not want special exceptions for Islamists.
Florida Family Association has prepared an email for you to send to the forty three 9th US Circuit Court of Appeals justices urging them to affirm the First Amendment rights that all Americans cherish by reversing the panel’s troubled ruling and affirming the district court’s decision.
Florida Family Association is taking a position in this case based upon judicial principle and without regard to the parties involved or content of the movie.
To send your email, please click the following link, enter your name and email address then click the "Send Your Message" button. You may also edit the subject or message text if you wish.
Original email alert history of issue.
By a 2-1 vote, a panel of the 9th U.S. Circuit Court of Appeals ordered Google on February 26, 2014 to remove the controversial movie
“Innocence of Muslims” from Youtube.com. This movie
that sparked protests across the Muslim world “depicts Muhammad as a feckless philanderer who approved of child sexual abuse, among other overtly insulting claims that have caused outrage. In a 13 minute 51 second trailer, the Islamic prophet is made to look like a murderer and adulterer as well” according to TheBlaze.com
Cindy Lee Garcia filed a law suit against Google on October 17, 2012 seeking a restraining order that would require Youtube.com to remove “Innocence of Muslims” from their web service. Garcia claimed that she had a copyright for a five second video that was incorporated into the film and that she had not given permission for its use in the movie. She also claimed that she would suffer irreparable harm if the movie were not removed from access on the World Wide Web.
- Garcia failed to “establish that she is likely to succeed on the merits, that she is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in her favor, and that an injunction is in the public interest.’”
- The Film was posted for public viewing on YouTube on July 2, 2012 – five months ago. Given this five-month delay, Garcia has not demonstrated that the requested preliminary relief would prevent any alleged harm.
- As was the case in Aalmuhammed v. Lee , 202 F.3d 1227 (9th Cir. 2000), the Film “is a copyrightable work, and it is undisputed that the movie was intended by everyone involved with it to be a unitary whole.” Id. at 1231. Additionally, a copyright in a work “vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.” 17 U.S.C. § 201(a).
- Garcia does not argue that she is the sole author of the Film, nor does she argue that the Film was a joint work of which she was a co-author. According to the United States Supreme Court, the “author” is the “person to whom the work owes its origin and who superintended the whole work.” Aalmuhammed, 202 F.3d at 1233 (citing Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 61, 4 S. Ct. 279, 28 L. Ed. 349 (1884)). By Garcia’s own allegations and argument, she does not meet this standard with respect to the Film. Furthermore, Garcia concedes that she does not have joint authorship over the Film or joint ownership of the copyright in the Film. (See Reply at 12 n.11).
Plaintiff Garcia appealed District Judge Fitzgerald’s ruling to the 9th US Circuit Court of Appeals. By a 2-1 vote, a panel of the appellate court reversed the lower court ruling. The panel ruled that Garcia did have a copyright claim to her five second segment, could suffer irreparable harm and ordered Google to remove the video from Youtube.com. Chief Judge Alex Kozinski said Garcia was likely to prevail on her copyright claim, and having already faced “serious threats against her life,” faced irreparable harm absent an injunction.
In a statement, Google said:“We strongly disagree with this ruling and will fight it." The film has now become an important part of public debate, Google argued, and should not be taken down. "Our laws permit even the vilest criticisms of governments, political leaders, and religious figures as legitimate exercises in free speech,” Google said. Google’s statement indicates that they believe that the motivation behind the appellate panel ruling has more to do with the negative portrayal of Muhammad than it does with the Chief Judge’s newly created doctrine regarding partial copy right.
The 9th US Circuit Court of Appeals panel ruling in Garcia vs Google appears to be more about appeasing Islamists than it does about defending the fullness of the First Amendment, following the rules of judicial construction and respecting established legal precedent.
A sua sponte request filed on March 6, 2014 indicates that the 9th US Circuit Court of Appeals will RECONSIDER the appeal En Banc before the full appellate court. The parties to the litigation were instructed to file their briefs with the court by
5:00 PM Pacific time, Wednesday, March 12, 2014.
