UPDATE, 3:29 PM: Google got some swift justice today, but it wasn’t the type it wanted. The 9th Circuit Appeals has decided it does not want to conduct an all-judges rehearing of the tech giant’s appeal in the Innocence Of Muslims copyright case. “A vote of the non-recused active judges was conducted as to whether to rehear the panel order en banc,” read an order (read it here) from the court today after Judge Sidney Thomas talked to his colleagues. “A majority of the non-recused active judges did not vote in favor of rehearing en banc.” This sua sponte action of Thomas’ own initiative comes two days after the tech giant requested a full rehearing by the appeals court. On February 19, a 9th Circuit panel sided with actress Cindy Lee Garcia and decided 2-1 that YouTube had to take down the controversial anti-Islam film Innocence Of Muslims. With today’s order, this is Google’s third loss in a row in its appeal. “Therefore, the panel shall resume control of the case,” added today’s 2-page order. “Any further proceedings as to the panel opinion, including any petitions for rehearing and rehearing en banc, will be considered separately.”
PREVIOUS, MARCH 13 PM: It has struck out two times in a row so far, but Google isn’t giving up its legal battle to get the Innocence Of Muslims video back on YouTube. In an expected en banc rehearing request this week against the 9th Circuit Court of Appeals’ 2-1 decision of February 19 in favor of actress Cindy Lee Garcia ordering the controversial 14-minute trailer taken offline, the tech giant says the Copyright Office is on its side.
“Since the panel ruled, the U.S. Copyright Office has refused registration of the very copyright claimed in this case,” says Google’s 19-page-plus-exhibits March 12 filing (read it here) for a hearing by the full Court. “It concluded — in a decision Appellant failed to even mention in her brief filed today in this Court — that Garcia’s copyright claim was contrary to the Copyright Act and to the Office’s ‘longstanding practices.’” In fact, it turns out the Office made the call back on December 18, 2012, but the actress, who appears in Muslims for five seconds, asked them to hold off on her application until the 9th Circuit ruled on her case. It did, and then on March 6, the Office rejected Garcia’s application and noted “longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance contained within a motion picture.”
Posted online in September 2012, the Innocence Of Muslims trailer caused violent protests around the Muslim world as well as calls for the filmmaker Mark Basseley Youssef’s death. Not long after the video attracted worldwide attention, Youssef was jailed for a year on parole violations related to a 2010 bank fraud case. He since has been released. California-based Garcia, who has claimed that she too received death threats, says she never signed a release form for her participation in the film, originally entitled Desert Warriors. Garcia also has said she thought that the film she was appearing in was very different from the one that showed up online. Garcia and her lawyer Cris Armenta have used that lack of a release to assert her own copyright over Innocence in their efforts to get YouTube it take it down. Seems that argument might be waning now after the Copyright Office’s ruling.
Of course, Google isn’t just going to use the Copyright Office to make their point. As they have before in this case, YouTube’s parent company warns of what the impact could be to Hollywood and others. “The panel’s holdings create new risks to movie studios, documentary filmmakers, and other creative enterprises by giving their most minor contributors control over their works,” the en banc request notes. “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.”
Google and YouTube are represented by Timothy Alger and Sunita Bali of Palo Alto firm Perkins Cioe LLP and lawyer from Washington D.C. firm Hogan Lovells US LLP