UPDATED: Google Files Emergency Motion To Stop Censorship Ruling Over 'Innocence Of Muslims', Is Denied

from the stop-the-insanity dept

Update: And... the motion has been denied with little explanation (pdf link). We'll bring more analysis if/when we get more information.

As was fully expected, Google has quickly filed an "emergency motion for a stay" on the horrific 9th Circuit ruling that the company needed to take down all copies of the Innocence of Muslims film and block it from being re-uploaded anywhere. Google has made it clear that it will fight this decision, starting with asking the 9th Circuit for an en banc rehearing (appeals court cases are normally heard with 3 judges -- an en banc hearing, if the court agrees to hear it -- includes a larger slate of judges (in the 9th Circuit, it is almost always 11 judges, though in theory it could be all 29).

Appeals courts don't often grant requests for en banc hearings and, as such, often don't grant stays (basically holding off enforcing the order). However, with this case generating so much attention (and condemnation), hopefully enough of the judges in the 9th Circuit agree that it's worth rethinking Judge Kozinski's order.

Google's motion lays out the basic argument, highlighting that the ruling simply invents new law and ignores precedents that the court is bound by. It also highlights how the ruling seems to get some rather basic issues flat out wrong. Furthermore, it highlights that there is real harm from the censorship imposed by the ruling, while leaving the video up for a little more time is unlikely to create any additional harm (if it ever created any harm in the first place).
The panel majority's takedown order contravenes Circuit law by imposing a mandatory injunction—an injunction gagging speech, no less—even though the majority found the merits “fairly debatable.” ... The majority's novel copyright analysis is wrong on several fronts, creates splits in the Ninth Circuit, and will produce devastating effects: Under the panel's rule, minor players in everything from Hollywood films to home videos can wrest control of those works from their creators, and service providers like YouTube will lack the ability to determine who has a valid copyright claim. And absent a stay, Google, YouTube, and the public face irreparable harm because the panel's order will gag their speech and limit access to newsworthy documents—categorically irreparable injuries.
The full filing certainly highlights the likely arguments that Google is hoping to make should the court agree to an en banc hearing or, barring that, in an attempt to get the Supreme Court to hear the case.

Filed Under: alex kozinski, copyright, first amendment, free speech, innocence of muslims
Companies: google


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  1. icon
    Khaim (profile), 28 Feb 2014 @ 3:25pm

    Re: DMCA

    Not exactly; there are a few subtle legal differences. (I agree that the DMCA process is bad, but there are levels of bad.)

    The DMCA involves immunity from liability. If a content provider (like YouTube) receives a DMCA takedown notice, they are free to ignore it. This does not violate any laws. All it does is allow the copyright owner to sue them - and the content provider could still win the lawsuit and suffer no penalty (aside from legal fees).

    In contrast, a court issuing a mandatory injunction is a legally binding order. If YouTube ignored it, they are guilty of breaking the law. Not accused; guilty. If this happens the judges can throw people in jail and levy all sorts of fines, completely at whim, without any right to trial or any real chance of appeal. And they will, because judges do not like being played.

    When a judge tells you to do something, you do it. If you think it's wrong, you file a protest and then you do it anyways. YouTube is huge, wealthy company with very good lawyers, and this is what they did. That should tell you something. Next to that, the DMCA is nothing more than a polite suggestion.

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