In an opinion issued this morning, an almost unanimous en banc Court of Appeals for the Ninth Circuit has overturned the panel opinion in Garcia v. Google, which last year granted a mandatory injunction requiring Google to remove the video “Innocence of Muslims” from YouTube on the ground that, when an actress was tricked into playing a bit role for a movie, she acquired a copyright that she could assert against the broadcast of the whole film unless her part was removed. Only Judge Kozinski dissented; Judge Watford would have reversed only on the ground that there was insufficient evidence that the relief awarded by Judge Kozinski’s panel would have helped protect Garcia against irreparable harm.
The en banc court majority rested its ruling only partially on copyright grounds, finding both that Garcia’s performance was not an independently copyrightable work of authorship and that Garcia’s non-involvement in the fixation of her performance prevented her from claiming the authorship.
But even more important are the parts of the opinion that focus on the preliminary injunction banning the film from YouTube or, as amended, requiring that the film be Bowdlerized to remove the few seconds in which Garcia appeared if the film were to remain online. Taking up one of the grounds that Public Citizen put forward in its en banc amicus brief the Court points out that Garcia’s claims of irreparable injury rest on concerns that are unrelated to her interests as an author; they did not constitute copyright injury, but rather injury to her reputation or to her privacy. The en banc court endorsed the refusal of a Florida trial court to grant an injunction to Hulk Hogan by claiming copyright in a sex tape showing his “performance” with a mistress, stating, “The only evidence in the record reflecting harm to [Hogan] relates to harm suffered by him personally and harm to his professional image due to the ‘private’ nature of the Video’s content. This evidence does not constitute irreparable harm in the context of copyright infringement.”
The en banc majority also takes a shot at the “right to be forgotten”: "Ultimately, Garcia would like to have her connection to the film forgotten and stripped from YouTube. Unfortunately for Garcia, such a ‘right to be forgotten,’ although recently affirmed by the Court of Justice for the European Union, is not recognized in the United States.” In the final analysis, says the en banc majority, “Garcia’s harms are too attenuated from the purpose of copyright. . . . the gravamen of Garcia’s harm is untethered from her commercial interests as a performer, and instead focuses on the personal pain caused by her association with the film.”
Not content with that discussion, the en banc court proceeded to discuss the First Amendment ramifications of the panel opinion, using arguments put forward by Public Citizen as well as by the media amicus brief. The court quotes the Supreme Court's admonition in Eldred v. Ashcroft that “copyright is not ‘categorically immune from challenges under the First Amendment,” and agrees with amici (and Google itself) that the takedown order was a “classic prior restraint” that “gave short shrift to the First Amendment values at stake. The mandatory injunction censored and suppressed a politically significant film—based upon a dubious and unprecedented theory of copyright. In so doing, the panel deprived the public of the ability to view firsthand, and judge for themselves, a film at the center of an international uproar.”
There will be much in this opinion for future use in defending online free speech. Judge Reinhardt's ringing dissent from the denial of rehearing on the preliminary injunction, chastising the majority for leaving the prior restraint in place for so long, is also a pleasure to read.