Why We Filed An Amicus Brief In Garcia v. Google: Blaming 3rd Parties Has Serious Impact On Free Speech

from the not-just-about-copyright dept

Monday was the deadline for amici briefs over whether or not the 9th Circuit should rehear, en banc, the Garcia v. Google debacle, in which Alex Kozinski made a bunch of highly questionable decisions in ruling that actress Cindy Lee Garcia deserves a copyright in her 5-second performance shown in the controversial 13-minute "trailer" known as Innocence of Muslims. The 9th Circuit made it clear that it would welcome briefs from anyone who wanted to file them, and a bunch of organizations and companies have been lining up to do so. You can see the full list of briefs here, though at the time I write this, it's still being updated. If I get the chance I'll try to review some of the other briefs soon. However, I wanted to write about one such brief first: ours.

After some consideration, we teamed up with the Organization for Transformative Works to file our own brief concerning "intermediary liability." While the 9th Circuit noted it would accept briefs from all interested parties, it also said those briefs had to be shorter than 2,500 words, which is not a lot of space to make complex legal arguments. We fully expected many others to focus in on all of the (many, many) troubling copyright aspects in Kozinski's ruling, but wanted to raise a separate (and, in some ways, larger) issue that was almost entirely ignored by the ruling: that third parties should not be blamed for the actions of their users -- and that Judge Kozinski's broad injunction did just that.

Lawyer Cathy Gellis wrote up an amicus brief on our behalf, highlighting Congress's clear intent in both Sections 230 of the CDA and 512 of the DMCA in providing safe harbors from liability for third parties, in order to encourage them to support free and open dialogue and discourse online, without fear of legal repercussions. As our brief argues, while many have ignored Section 230 (which excludes intellectual property), it should be quite clear that Garcia's case was really nothing more than an attempt to misuse copyright law in order to get around Section 230 and to hold a third party liable. Furthermore, as we've noted in the past, Judge Kozinski's injunction appears to go well beyond what the law says is appropriate in responding to copyright claims.

There is a reason why Congress was so intent on providing safe harbors, recognizing the incentives for broad censorship when you blame service providers for the actions of their users. Judge Kozinski appears to have ignored nearly all of Congress' intent in his ruling, and we're hopeful that (among the many other reasons why his ruling should be reviewed), the rest of the 9th Circuit will recognize that the original ruling has serious First Amendment implications, beyond just the basic copyright questions.

Reader Comments (rss)

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    Baldaur Regis (profile), Apr 15th, 2014 @ 7:29am

    I am snapping my fingers in beatnik appreciation for Lawyer Gellis' brief. She's one cool kitty.

     

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    Anonymous Coward, Apr 15th, 2014 @ 7:50am

    I like how she claims intellectual property rights over words she says were dubbed over her performance, and not written or uttered by her. That's just neat.

     

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      Pragmatic, Apr 15th, 2014 @ 8:10am

      Re:

      TD trolls hate it when actual copyright laws are enforced. ;P

      Go, Gellis!

       

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      Anonymous Coward, Apr 15th, 2014 @ 8:13am

      Re:

      Nah, she doesn't have copyright over the *words*, which even if they weren't dubbed over were provided to her in the script. She is claiming copyright over her *acting*. All five seconds of it.

       

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        Anonymous Coward, Apr 15th, 2014 @ 8:33am

        Re: Re:

        "Garcia is likely to succeed on the merits of her copyright claim. Just as significantly, the judges on the panel took
        Ms. Garcia's situation seriously, and balanced her intellectual property interests and her interest in her life
        and safety over Google's business interests. "

        My point was she has no intellectual property interests in this case, but I was apparently misunderstood.

         

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    Anon E. Mous (profile), Apr 15th, 2014 @ 8:22am

    Mrs Garcia and her counsel are dreaming in Technicolor if they think that they will survive this appeal and still come out on top.

    The Judge wasn't going to reverse his ruling when they filed the inital motion after the verdict, and I highly doubt the appeals court hearing Google's appeal is going to let it stand.

    The absurdity of this ruling will hit home, and this will be struck. One could only imagine the damage this ruling would do if it was left to stand. You would have hundreds if not thousands of Garcia type cases flooding the court.

     

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      Anonymous Coward, Apr 15th, 2014 @ 9:04am

      Re:

      "The absurdity of this ruling will hit home, and this will be struck. One could only imagine the damage this ruling would do if it was left to stand. You would have hundreds if not thousands of Garcia type cases flooding the court."

      In a sick and twisted way I *want* it to stand, for exactly that reason.

      This would brake copyright so badly, especially for the maximalists, that a proper copyright reform that actually does something would become inevitable. And if a real reform has to happen, there is a better than zero chance to actually fix copyright.

       

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      Anonymous Coward, Apr 15th, 2014 @ 9:04am

      Re:

      "The absurdity of this ruling will hit home, and this will be struck. One could only imagine the damage this ruling would do if it was left to stand. You would have hundreds if not thousands of Garcia type cases flooding the court."

      In a sick and twisted way I *want* it to stand, for exactly that reason.

      This would brake copyright so badly, especially for the maximalists, that a proper copyright reform that actually does something would become inevitable. And if a real reform has to happen, there is a better than zero chance to actually fix copyright.

       

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      Anonymous Coward, Apr 15th, 2014 @ 9:19am

      Re:

      Mrs Garcia and her counsel are dreaming in Technicolor if they think that they will survive this appeal and still come out on top.


      I would have agreed originally... but they got circuit court judges to agree with them. These aren't just ordinary appeals court judges; the only judges higher are on the Supreme Court. And the Supreme Court may well decide to not take the case.

       

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        william (profile), Apr 15th, 2014 @ 9:48am

        Re: Re:

        What I want to know is, how likely is an American court/judge to admit they made a terrible mistake? Usually judges/courts are viewed with high regards and that makes them hard to admit their own fault.

         

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          John Fenderson (profile), Apr 16th, 2014 @ 8:21am

          Re: Re: Re:

          The court that made the mistake doesn't have to admit it -- a higher court (in this case the SC) can rule that a mistake was made and overrule the decision or send it back for rehearing. It actually happens all the time.

          If, as has happened numerous times, the SC itself made the mistake, then it's a little trickier -- the SC has to admit the mistake and reverse itself. This doesn't often happen while the same judges are sitting on the court, but it does happen that a later court overturns a prior court's ruling.

           

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    RonKaminsky (profile), Apr 15th, 2014 @ 10:27am

    "so intent"?

    > Congress was so intent on providing safe harbors

    I wasn't there when the DMCA managed to get through, but given what I've been seeing about Congress recently, it seems to me to be equally likely that they were just "so intent" on pushing something through, so they could continue to collect big campaign contributions from certain lobbyists...

     

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    Ninja (profile), Apr 15th, 2014 @ 10:58am

    I'll use this comment to thank Techdirt for this. Probably the average Joe like me and many other readers wouldn't be able to pull such brief due to lack of time, lack of knowledge or simply lack of writing skills. It is good to see that somebody - and in my case somebody I 'donate' my money to because I like their work - is there helping with such an important cause.

     

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      BentFranklin (profile), Apr 15th, 2014 @ 1:04pm

      Re:

      I was going to say just that. Thanks, TechDirt!

       

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      Mike Masnick (profile), Apr 16th, 2014 @ 10:27am

      Re:

      I'll use this comment to thank Techdirt for this. Probably the average Joe like me and many other readers wouldn't be able to pull such brief due to lack of time, lack of knowledge or simply lack of writing skills. It is good to see that somebody - and in my case somebody I 'donate' my money to because I like their work - is there helping with such an important cause.

      In this case, all the credit needs to go to Cathy Gellis. Check out her blog: http://www.digitalagedefense.org/wp/

       

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    Martin, Apr 15th, 2014 @ 11:26am

    Brilliant. Very nicely written!

     

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    Karl (profile), Apr 16th, 2014 @ 4:50pm

    An Unhelpful Hartline

    If anyone cares, Devlin Hartline has written a post about this brief on his "Law Theories" blog:
    http://lawtheories.com/?p=1058

    Unsurprisingly, it is both dismissive and dishonest.

    FYI, I suspect that Hartline is none other than notorious Techdirt troll Average Joe. Of course, I don't know this for sure, and if it's not true, I owe Hartline an apology for even suggesting it.

     

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      Gwiz (profile), Apr 16th, 2014 @ 5:16pm

      Re: An Unhelpful Hartline

      FYI, I suspect that Hartline is none other than notorious Techdirt troll Average Joe.

      After checking out Hartline's blog, I have to agree with you on that. The arguments concerning Aereo and others are almost word for word the same ones AJ has made. Hartline's personal information also lines up with the personal detail crumbs that AJ let slip over the years too.

       

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    Anonymous Coward, Apr 16th, 2014 @ 6:55pm

    So glad to know you got the message, Mike.

     

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    wallyb132 (profile), Apr 17th, 2014 @ 6:30pm

    Interesting...

    Mike, thanks for pointing out the url to the 9th circuit web page for this case.

    I looked at each of the Brief Of Amici Curiae that were filled in this case, its interesting to note not only the vast number people and organizations that signed their names to these briefs, but the fact that every single one is in favor of Google / You Tube.

    Its amazing how a judge can make a decision that is so wrong and receive such a public backlash and still stand behind his decision, its as though he thinks that decision is supported by written law, which it clearly isnt.

    its decisions like this why I think there needs to be a more comprehensive review of judges mental status and ability to perform their duties. Because in my view after seeing the ruling, its entirely possible that this judge blew a gasket or fouled a couple spark plugs and isnt running on all cylinders.

     

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