Florida Family Association sent out several email alerts earlier this year that reported a 3 judge 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. The panel voted 2-1 to reverse a lower court order that denied the injunction sought in Cindy Lee Garcia's law suit. Garcia sued 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 from an Islamic fatwa if the movie were not removed from access on the World Wide Web.
“Innocence of Muslims” which 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
Defendant Google, who owns YouTube, has petitioned the appellate court to hear the case en banc by all of the justices in the 9th US Circuit.
9th US Circuit Court Chief Judge Alex Kozinski's amended opinion for the en banc hearing states in part:
While answering a casting call for a low-budget amateur film doesn’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa. But that’s exactly what happened to Cindy Lee Garcia when she agreed to act in a film with the working title “Desert Warrior.”
These, of course, are fighting words to many faithful Muslims and, after the film aired on Egyptian television, there were protests that generated worldwide news coverage. An Egyptian cleric issued a fatwa, calling for the killing of everyone involved with the film, and Garcia soon began receiving death threats. She responded by taking a number of security precautions and asking that Google remove the video from YouTube.
There’s nothing in the record to suggest that Youssef was in the “regular business” of making films. Reid, 490 U.S. at 752. He’d held many jobs, but there’s no indication he ever worked in the film industry. And there’s no evidence he had any union contracts, relationships with prop houses or other film suppliers, leases of studio space or distribution agreements. The dissent would hold that Youssef was in the “regular business” of filmmaking simply because he made “Innocence of Muslims.” But if shooting a single amateur film amounts to the regular business of filmmaking, every schmuck with a video camera becomes a movie mogul.
Chief Judge Alex Kozinski’s opinion which references the fatwa against Garcia essentially elevates the Sharia law command to censor blasphemy of Muhammad over the First Amendment to the United States Constitution. This lawsuit would never have happened were it not for the fatwa issued by the Egyptian Imam that ordered the killing of anyone involved in the production of “Innocence of Muslims.” Garcia did not take legal action until six months after the video was released. The fatwa is the potential “irreparable harm,” one of four factors required for a restraining order, sited in the appellate court’s opinion for the basis of ordering Google to remove “Innocence of Muslims” from YouTube. Any restraining order should be focused on the Islamists who want to kill Americans not on Americans who want to exercise their First Amendment Rights.
Additionally, Chief Judge Alex Kozinski’s opinion prejudicially determines who serious producers are and who are not and elevates the copyrights of “aspiring actresses” over first time producers. Judge Kozinski’s opinion erroneously discounts the fact that Youseff, the film’s producer paid Garcia, the actress, $500 for her video footage at issue. Judge Kozinski’s opinion prejudicially establishes that copyrights for amateurs and professionals are different when the court should be establishing equity.
Chief Judge Alex Kozinski’s opinion could empower Islamists to focus their angst against more actors in videos and perhaps people in photos with the goal of influencing them to demand removal of the same from movies, website posts or blog posts. The Council on American Islamic Relations' censorship of American films has been robust lately. CAIR recently boasted: CAIR has challenged actual and potential anti-Muslim stereotypes in productions such as ABC Family network's "Alice in Arabia," "Executive Decision," "24," "The Siege," "True Lies," "Rules of Engagement," "Obsession," "The Third Jihad," "Jihad in America," and "The Sum of All Fears."
Now the full 9th US Circuit Court of Appeals will hear the panel's troubled ruling that was approved by a 2-1 vote.
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 order. 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.
The email for this article was deactivated after the court reversed the 3 judge panel and affirmed Google's First Amendment Right to play the video on Youtube.com
Email issue history.
Netflix and other American corporate interests ask 9th US Circuit Court of Appeals NOT to make First Amendment exception for Islamists by forcing Google to remove Muhammad movie. Please send your email to 43 appellate court judges.
Click here to send your email asking 43 appellate court judges to affirm First Amendment over Islamist exception.
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.
Michael W. Fitzgerald, District Judge, United States District Court for the Central District of California issued an order on November 30, 2012 DENYING Garcia’s petition to the court (in part) because:
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.
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 Americans 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.
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