Why Didn't The MPAA Weigh In On Garcia v. Google?
from the couldn't-bring-themselves-to-support-google? dept
We already mentioned the amicus brief we submitted about the risks concerning intermediary liability (authored by lawyer Cathy Gellis) in the Garcia v. Google case. In it, we noted that the 9th Circuit had set up a page where all such filings are listed and that we planned to write about some of the other briefs. Of course Eric Goldman beat me to it, discussing all of the various amicus briefs and what they focus on. In short, though:
- Public Citizen’s brief, submitted a while ago, focuses on whether or not an injunction against Google is appropriate, and explains why it is not.
- An excellent brief from EFF, ACLU, Public Knowledge, CDT, New Media Rights, American Library Association and the Association of Research Libraries covers a lot of ground in under 2,500 words, highlighting the “novel” nature of the copyright claim and its “dangerous implications.” It also highlights how the focus on the potential harms to Garcia are not copyright-related harms. Finally, it notes that the gag order Kozinski ordered was unconstitutional.
- A bunch of news organizations, including the LA Times, the Washington Post, NPR, Scripps, Advance Publications, the California Newspaper Association, RCFP, First Amendment Coalition and DMLP, submitted a brief on both the First Amendment issues raised by the ruling, and how it might lead to news organizations being blocked from publishing newsworthy content.
- A separate brief from California broadcasters focused on the oddity of Kozinski’s interpretation of copyright law, and how that will “create confusion.”
- Another fantastic brief comes from a variety of tech companies, including Twitter, Automattic, Kickstarter, Facebook, Yahoo, Tumblr, eBay, Adobe, IAC, Gawker and Pinterest. It highlights how the injunction goes way beyond what the law allows, placing (again, as we noted in our brief) tremendous liability on intermediaries, such as requiring them to block all future uploads. It also challenges the gag order that was originally placed on Google as setting a very dangerous precedent.
- Then we have the academics. A brief from internet law professors (written by Eric Goldman and Venkat Balasubramani, but signed by many more) covers the intermediary liability issue (like ours did) and highlights how this appears to be Garcia trying to use copyright as an end-run around Section 230.
- Then there’s a brief from IP law professors (written by Christopher Newman, Chris Sprigman and Julie Ahrens but signed by many more) focusing on the core ridiculousness of the claim that Garcia has a legitimate copyright interest in her performance. As they note: “the panel opinion in this case makes new law with corrosive implications for these foundational principles of copyright law.”
- Netflix weighed in to point out that this creates a “new species of copyright” and would give “an effective veto right to any performer.”
- Finally, a bunch of independent filmmakers, including the International Documentary Association, Film Independent, Morgan Spurlock and Fredrik Gertten, all submitted a brief about the “chaos” this will cause for filmmakers.
The last one is especially powerful and worth reading. But those final two — from Netflix and those indie filmmakers — actually highlight a glaring omission: Where is the MPAA? As we noted when the original ruling came out, it was so bad and so ridiculous that it ought to have actually united Google and the MPAA on a single copyright issue. Because if it stands, both will suffer greatly.
And yet, so far, the MPAA appears to be sitting this one out. Eric Goldman, in his post, speculated as to possible reasons, none of which look good for the MPAA:
Noticeably absent from the amicus brief roster are the big entertainment companies, such as the major movie studios and the record labels. Given that this case involves video production, something Google/YouTube don’t know much about, where are the real experts on this topic? One possibility is that they are hubristic enough to believe that they run such a tight legal ship that they will never run into problems with the court’s holding. Another possibility is that they are spiteful enough to delight in Google’s misery, even if the rule ultimately hurts them too (i.e., the enemy of my enemy is my friend). Yet another possibility is that they are happy to free-ride on Google’s efforts, getting all the benefit of Google fixing the law without any of the financial or reputational costs of siding against Garcia or supporting a deceitful rogue film producer. Whatever the reason, I can’t say that I favorably regard their decision to stand on the sidelines as the Ninth Circuit is trying to wreck their industry.
It is quite a glaring absence.