Judge Kozinski Refuses To Even Consider That His Ruling To Censor 'Innocence Of Muslims' On Copyright Grounds May Go Too Far

from the bad-facts,-bad-law dept

On Friday, we had posted about Google’s motion for an emergency stay on Judge Alex Kozinski’s horrific ruling that forced Google to remove all copies of the controversial Innocence of Muslims trailer, based on a bizarre interpretation of copyright law, which gave an actress who appears in 5 seconds of the 13 minute trailer the ability to claim a copyright and take down every copy of the trailer. We had posted an update late Friday with the news that Judge Kozinski had quickly denied the motion, and only made one small change to his order, saying that copies of the video without Ms. Garcia’s 5 seconds did not need to be taken down. At the very least, this is a small concession that his original order was insanely overreaching and broad.

What’s troubling here, though, is that Kozinski seems completely blind to the fact that his ruling is extremely controversial and involves breaking serious new ground in how to interpret copyright law — in a manner that appears to be quite different than every other court in history that has raised these issues. While there are some lawyers who seem to think that Kozinski’s ruling makes sense, there are tons who disagree, including many of the top copyright experts in the field. Just the fact that this case is generating so much controversy from within the copyright bar should at least indicate that Kozinski’s interpretation should be looked at more closely — and as such, it seems quite reasonable for the 9th Circuit, and Kozinski in particular, to humbly recognize that for the sake of not censoring protected speech, the original order should be stayed until it can be reviewed.

Kozinski, unfortunately, is not exactly known for his humility. And while that sometimes makes him one of the most entertaining judges around, it seems dangerous in this particular case. He seems to have made up his mind that his ruling makes sense and, even if many people disagree with him, he appears to have no time to even think that maybe he misjudged the basic tenets of copyright law. On controversial decisions, it’s fairly common for judges to admit that the ruling is likely to be reviewed, and to agree to a stay. It’s disappointing that Kozinski seems so sure he’s right here that he’s unwilling to hold off on enforcing the order in the case until others might have a chance to review his rather novel reading of the law.

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Comments on “Judge Kozinski Refuses To Even Consider That His Ruling To Censor 'Innocence Of Muslims' On Copyright Grounds May Go Too Far”

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That One Guy (profile) says:

Re: Re: Re:

It’s not even ‘copyright’ as most would consider it, rather a mangled, stretched, tortured version of copyright, where an actress, who shows up for 5 second in a 14 minute clip*, is considered to have a valid copyright claim on the entire video.

*Might be off on the numbers here, but these are what I’ve heard.

Anonymous Coward says:

Re: Re: Re:3 Re:

Whose point? A point you just made up? The guy I responded to said something that’s just not true.

Anyway, there was no evidence of a written work made for hire agreement and the court held she was not an employee, so there was no basis to hold that the producer was the author as a work made for hire.

Anonymous Coward says:

Re: Re: Re:4 Re:

By that logic, publishing any photo or video that include any person, without their express permission, could be subject to take down on copyright grounds. Amongst other things that would cripple new reporting, and allow anybody to get any image or video that they do not like taken down.

Anonymous Coward says:

Re: Re: Re:5 Re:

I’m not sure which logic you’re referring to. I just explained why it wasn’t a work made for hire, which isn’t seriously questioned in this case.

If you’re talking about bogus DMCA takedowns, that’s a risk regardless of this ruling.

If you’re talking about actual suits and rulings, this case does not make everyone in any photo a potential copyright owner, but it’s true that someone consciously contributing their own creative expression might have a copyright interest. Of course, if they are consciously doing so, they are almost certainly granting an implied license for use of their image.

Now, if there’s a street musician performing in the background of a news video, then maybe he or she does have a copyright claim, but I believe there would be other first amendment concerns not present in this case that could change the result. Perhaps even the copyright analysis would be different, if the performer is unwittingly being recorded.

LAB (profile) says:

Re: Re: Re:4 Re:

Then they are joint authors? That agreement must be explicit and decided at the onset…. Then perhaps she gave an implied non exclusive license to use her performance and she has decided to rescind that license? Or she saw them filming and didn’t realize her image would be used. She must have wandered on set.

Anonymous Coward says:

Re: Re: Re:5 Re:

I think there’s a decent argument for joint authorship (in the absence of a written agreement), but Ninth Circuit precedent on that matter is not favorable for the plaintiff and the panel rejects that conclusion.

I’m not sure what agreement you’re talking about in your second sentence, but joint authorship doesn’t require an agreement.

She clearly granted an implied license (did you read the opinion?). They used the film outside the scope of that license. The court explicitly states this will hardly ever be the case, but the crazy facts in this case show that’s what happened.

Karl (profile) says:

Re: Re: Re:4 Re:

Anyway, there was no evidence of a written work made for hire agreement

Actually, there was, but it is in dispute. Google brought in the agreement, but Garcia claimed it was forged. The lower court didn’t rule on the matter, and it didn’t make it to the circuit court (yet).

Yet another reason that the preliminary injunction and gag order were bad ideas.

That One Guy (profile) says:

Re: Re: Re:2 Re:

When the results are the same, they might as well have said she had a copyright claim over the entire film.

Keep in mind it was only the revised ruling that specified that copies of the video without her part in it were acceptable, the original order did not(as far as I’m aware) make that distinction, and simply ordered all copies of the video to be pulled, and even blocked from being posted.

Chronno S. Trigger (profile) says:

Re: Re: Re: Re:

I was going to call you “a raging moron”, but then I thought maybe you’re just from another country. Though I think the vast majority of the world knows what I’m about to explain to you.

In the US there’s this thing called the Bill of Rights. It is a document we hold above all else. One of the first things in this document is a thing called The First Amendment. It states that the United States Government cannot infringe upon it’s citizens rights to free speech. Basically, all speech is protected in the US.

Monarch818 says:

Re: What is there to consider? The judge was absolutely right.

So AC, I was an extra in a number of movies and TV shows back in the mid-90’s. With the precedent from this decision, I’d be able to sue to pull down any movie or TV show that I was in, until such a time I was edited out of the film or TV show. And believe me, that was quite a few of them!!!

Monarch818 says:

Re: Re: Re: What is there to consider? The judge was absolutely right.

Well, in at least one of the performances, in a VERY Major Motion Picture release, I was in the movie for a few minutes. I was paid to be a stand-in for myself. I still have the call sheet and pay stub, showing I was a stand-in for myself in the movie. I had no lines, but you do get to hear me grunt in pain. So, technically, I could prove they had no permission to use my performance, as I only got paid to be a stand-in, and not actually be filmed in the movie. And yes the movie has grossed over $122,000,000.00 worldwide since 1997.

Pragmatic says:

Re: Re: Re:2 What is there to consider? The judge was absolutely right.

Well, in at least one of the performances, in a VERY Major Motion Picture release, I was in the movie for a few minutes. I was paid to be a stand-in for myself.

Good for you, but you don’t get to sue them if you subsequently decide you’re not happy with the way you were portrayed because you don’t have a copyright interest in the film.

DannyB (profile) says:

Re: Re: Re:

Judges should be sober, not entertaining.

Judges should be required to be sober.

Especially if they are making important decisions with serious consequences. We expect no less from automobile drivers.

Judges especially should be sober (including drugs) if they are going to punish other people for taking those very same or similar drugs.

Andrew Norton (profile) says:

Re: Re: Re:2 Re:

Did you RTFA?
Specifically, there was a link about 4 words earlier about how some thought it good. If you’d clicked it, you’d have gone to a piece called “Hollywood Experts Divided on Implications of ‘Muslims’ Ruling”

In it, it cites a number of experts who thought it bad, therefore they’re no longer ‘anonymous’ are they?

To help you out, I’ll even list them.
?It is a terrible ruling,? said UCLA School of Law professor Neil Netanel.
?This is clearly an ends-driven opinion,? countered Davis Wright?s Alonzo Wickers, who represents content creators and distributors.
University of Maryland law professor James Grimmelmann was blunt. ?It?s amateur hour at the Ninth Circuit,? he said.
James Janowitz, chair of the entertainment group at New York?s Pryor Cashman, said ?sometimes people will twist themselves into a pretzel? to reach a desired decision. Janowitz represents production companies and networks.

That help any? A little less ‘anonymous’ now? And all you had to do was click the provided reference.

Anonymous Coward says:

Re: Re: Re: Re:

Funny how the Techdirt article fails to mention that the foremost copyright scholar in the country, David Nimmer, agrees with the ruling, yet the article it cites makes that clear.

Now, David Nimmer isn’t God, but a lot of judges treat him as if he were when they write copyright opinions.

If you’re going to focus on what the “top copyright experts in the field” think, you might want to know that.

Andrew Norton (profile) says:

Re: Re: Re:2 Re:

It’s not as clear-cut as that.

Nimmer ? who also teaches at UCLA and is of counsel at Irell & Manella ? told THR that he agrees with the decision, although he added that the facts of the case were ?as squirrely as you could imagine.?

Is what it says. Sounds like a personal agreement with the ruling, but the last line indicates he’s not sure if it agrees legally.

Andrew Norton (profile) says:

Re: Re: Re:

judge who studied law all his life.

Wow, thats’ quite an achievement. So he was studying US law in Bucharest, before he moved to the US aged 12 in 1962?
In reality he didn’t even START studying law until he was 22, and since he’s now 63, that’s a large chunk of life he wasn’t studying law there.
At best ‘studied law 2/3 of his life’

Anonymous Coward says:

this is an awesome ruling.

now, any 2nd rate actor who has a bad role can perform, make the movie, and then when criticized for the bad acting, can sue to have the film removed from our memories.

Just like in summer soccer camp, we will have no more mediocrity. everyone gets a trophy! and, if not – then no one enjoys the movie.


Anonymous Coward says:

“makes sense” has a link, but “tons” does not. Any link to the latter, as well as the experts in the field who disagree with the court’s decision?

It is helpful to bear in mind that the plaintiff’s participation in the film project was for a different film entirely. Fraud in the inducement did figure into the court’s calculus, and not just copyright law.

Anonymous Coward says:

Re: Re: Re:3 Re:

The TD article says “some” support the ruling and “tons” disagree. The article it cites does not really indicate greater support or greater disagreement. This is playing up the disagreement and downplaying the support.

The TD article refers to those who agree with the ruling as “lawyer” and those who disagree as “some of the top copyright experts in the field.” The article it cites quotes the individual (David Nimmer) generally recognized as the foremost copyright scholar in the country, and a professor who wrote the most comprehensive journal article on the topic as one who agree with the ruling. Thus, the TD article emphasizes the credentials of those who disagree, while failing to provide any information about the stature of those who agree with the ruling.

You can get a lot of good info from TD. But if you really think you are getting unbiased, spin-free coverage from TD, I urge you to think critically about that conclusion.

Anonymous Coward says:

Re: Re: Re:

“The actor has no, zero, zilch, copyright interest in the film.”

Says John Fenderson. Two Ninth Circuit judges disagree (as do a couple of the foremost scholars in this area of law). At least in the sense that she has a copyright interest in her performance, and that is used in the film (thought the current 9th Circuit law agrees that he has no interest in the film as a whole).

Pragmatic says:

Re: Re: Re: Re:

But if that’s true, so is this statement:

now, any 2nd rate actor who has a bad role can perform, make the movie, and then when criticized for the bad acting, can sue to have the film removed from our memories. – AC @ 12:02pm

Which is why I advocate buttering the proverbial popcorn, as this is likely to bring in the MAFIAA on our side in an amicus brief to protect their interests.

Consider the possibility of a young woman who takes part in a raunchy rap video. She subsequently gets religion and is profoundly embarrassed by her performance so she sues to get the entire video taken off the internet, etc.

But worry not, dear friends, the video can still exist, but with her performance excised. Of course, if she’s featured as part of a group of dancers, they’ll have to either pixellate her or re-make the video.

Naturally, the original will still be floating around somewhere…

BSD32x (profile) says:

@ The Anonymous Coward who seems to be channeling OOTB:

The LA Times has just done a nice write up on this where they quoted several credible experts. By all means have a read before attacking Mike’s credibility or completely misunderstanding that Kozinski was only able to take advantage of a very questionable loophole because this was an independent production which did not use the standard Hollywood contracts.: “Hollywood studio executives say they’re not worried about the implications of the ruling. That’s because their contracts stipulate that actors are working for hire, which means they have no copyrights, and that even if they weren’t working for hire, they assigned their copyrights to the production company.

“Tech advocates were not so sanguine.

“Based on this ruling, anyone who contributes creative expression to a larger copyrighted work potentially may have an independent copyright claim against the work’s distribution and performance,” opined Andrew McDiarmid of the Center for Democracy & Technology. “In the case of a movie, for example, adjudicating these claims would require careful case-by-case examination of the contract, written or oral, between each bit player and the moviemakers. Beyond that, moreover, the notion that an individual actor may have a copyright interest in her performance poses huge problems in the context of the DMCA’s notice-and-takedown provisions.”

Wrote Corryne McSherry of the Electronic Frontier Foundation: “Garcia is claiming a copyright interest in her brief performance, a novel theory and one that doesn’t work well here. After all, Garcia herself admits she had no creative control over the movie, but simply performed the lines given to her. There may be a context where an actor could assert some species of authorship, but this doesn’t seem to be one of them. Moviemakers of all kinds should be worried indeed.”


BSD32x (profile) says:

Re: Re: Re:

I don’t think you’re grasping what the point of McDiarmid’s argument here is. All that needs to happen is for this precedent to be set, and it opens the Pandora’s gate of DMCA notices. So it doesn’t technically apply to the vast majority, but it enables pretty much anyone who has ever appeared in a film to file a DMCA takedown. Now, you might say “But there is a contract in place that would be examined at the surely occuring hearing to review the DMCA takedown!” In what world is that actually going to happen? There are no reprecussions for invalid DMCA takedown requests, and no venue in which to have an appeal heard.

So the short answer is that yes, if we are talking a civil copyright suit (and we all know how well those are handled based on Malibu Media, Prenda, etc.) this would not be as horrific. But in terms of suppression of speech, the consequences are very serious.

Anonymous Coward says:

Re: Re: Re: Re:

I’m sure I don’t grasp his point, since I didn’t read the linked article, just your post.

If the argument relies on the fact that there is de facto impunity for sending false DMCA notices, how does this ruling change anything? People could send BS notices before and after this ruling, and could continue doing so if it is overturned en banc or on appeal to the Supreme Court.

BSD32x (profile) says:

Re: Re: Re:2 Re:

You’re pretending that even as flawed as the DMCA takedown process is, there is no distinction between me arbirtraily filing a notice against a Mel Gibson film than if perhaps some extra did not agree Mel’s theological stance in the film and believed they were misled. Eric Goldman has an in depth explanation on his blog, you might want to give it a read to better understand this. http://blog.ericgoldman.org/archives/2014/02/in-its-innocence-of-muslims-ruling-the-ninth-circuit-is-guilty-of-judicial-activism-garcia-v-google.htm

Here is the most pertinent part: “Finally, what to make of the free speech implications of this ruling? It?s certainly surprising to see a First Amendment stalwart such as Kozinski casually refer to the Garcia?s dialogue as ?fighting words,? and to place such heavy reliance on the threats Garcia received. Compare the tone of this ruling with Kozinski?s opinions in cases such as City of Norse, where he take a much firmer and almost contemptuous stance on the ability of those offended to impose restrictions on speech. Given the well-documented efforts of censorship that use copyright as a proxy, it?s unfortunate Chief Judge Kozinski did not make the connection between the two. I wouldn?t go so far as to say that anyone who issues a DMCA takedown request is a censorious thug, but here, the connection between the actions of those who disagreed with the message and the resulting pressure on Garcia to try to get the video pulled were well documented. This starts to look a whole like a variation on the heckler?s veto. It?s certainly not very speech friendly to take an expansive view of copyright in connection with takedown requests that are prompted by threats of violence. What?s next? Someone who issues a widely ridiculed religious pronouncement starts to issue DMCA takedown notices directed at articles critiquing and poking fun at the pronouncement?”

Anonymous Coward says:

Re: Re: Re:3 Re:

A very results-oriented analysis, but that doesn’t make the copyright analysis in the court’s opinion wrong.

Might this ruling result in an incremental increase in the amount of bogus DMCA notices sent? Perhaps, though I’m certainly not convinced of that.

At any rate, that’s a problem to be addressed with the DMCA, not by changing the court’s substantive analysis on authorship and copyright ownership, or its substantive analysis of the limits of an implied license.

BSD32x (profile) says:

Re: Re: Re:4 Re:

I’m just not buying your argument here. Goldman’s analysis isn’t “results oriented”, it’s legal precedent oriented. And the “court’s substantive analysis”? Substantive based on what, you yourself directed people to read the ruling, which is itself very light on references to prior cases. I would call it the court’s opinionative analysis, certainly, but people who rely on opinion are legal advocates and have no place on the bench.

Anonymous Coward says:

Re: Re: Re:5 Re:

You seem to be focusing on the “result” that more DMCA take down notices could be sent. That might be a negative result, but it is tertiary to the issue of who owns a copyright interest. That’s my point regarding “substantive analysis.” The court was tasked with determining whether the plaintiff owned a copyright interest. The court shouldn’t say, “well, I don’t like the potential results if we think she has a copyright interest, so I’ll say she doesn’t.” The court has to determine the issue at hand.

Uriel-238 on a mobile device (profile) says:

Appeal to authority much?

A man being a judge neither makes him infallible nor necessarily right, and by accepting Kozinski’s position based solely on his credential of jurist, I’d say you’re too ignorant or too apathetic to have a valid opinion.

Speaking as one who is completely ignorant of Kozinski’s entertaining antics, he sounds like someone who would uphold a prior ruling purely out of personal insecurity of maybe being wrong.

Hopefully other jurists will be allowed to overrule.

Anonymous Coward says:

At this point there are 74 comments plus the article which have all missed the point.

Does a person have the right to make movies, publications and comments which are in full compliance with all western law have the right to start a war in the Middle East and throughout the Muslim world?

What about the fact that at least one Muslin country, Pakistan, is nuclear armed?

Anonymous Coward says:

Re: TLDR: File "innocence" in made-by-jerk basket, ignore, let god take care of him later, dont start war with Pakistan.

Me again…. now the coffee is cleaned up.

TLDR: You should file “innocence” in made-by-jerk basket, ignore, let god take care of him later, don’t start war with Pakistan.

If you have a point to raise – go for it… by why assume we missed it? maybe we saw it, judged it, dismissed it and moved on? (see what I did there?)

Let me ask you a question – why does your right not to be offended trump our right to say things you don’t like? Why must you start a war over what someone else said? Is your right better than our right?

I’m going to assume you’re Muslim of some sort and hence the belief that they should not have done whatever offended you because you believe in some god who said don’t do this. So… that makes a valid law for believers but does it make it valid for unbelievers or does you god not care what they do cause by definition they don’t believe hence the end up in hell (or whatever)???

Does your god law say you must enforce your god law on unbelievers or only believers? What about their god laws? Should they not then enforce theirs on you?

Can you even see where this ends???

Your point opens up the most interesting Theological & Ethical debates that Philosophers from all beliefs, races & lands have been arguing over for centuries if not millennia.
While I would enjoy such a debate I must point out it is mostly off-topic (like the point we all missed except you) so maybe would deserve it’s own blog post, or blog, or wiki, or university courses or… well hopefully you didn’t miss my point 🙂

Steve Day (profile) says:

Lookout Disney - I'm coming for ya!

This stupid ruling means that I can immediately prevent Disney from showing or selling “Star Wars Episode I”… You see, back in 1997, I was a background actor in the movie and being a lifelong star Wars fan I felt very betrayed/disappointed when the final movie was released.

So thanks to this knob-of-a-judge, precedence has been set making it legally possible for me to give Jar-Jar Binks a good beating with a gavel. Yay!

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