Late last week, the 9th Circuit appeals court asked
the various parties to file briefs on whether or not it should reconsider Google's motion
for a stay on Judge Alex Kozinski's horrific ruling
that an actress, Cindy Lee Garcia, who appeared in approximately 5 seconds of the infamous 13-minute "trailer" of "Innocence of Muslims" had a copyright interest in her performance and could legitimately demand Google remove all copies of the film. Despite the extremely controversial ruling, and the First Amendment implications associated with it, Kozinski almost immediately rejected the motion. However, another judge in the 9th Circuit took it upon him or herself to ask the court to reconsider the question "en banc" (usually meaning all the judges, but in the 9th Circuit, it's a panel of 11). On Wednesday, both sides filed their motions, limited solely to the question of whether or not the court should reconsider the motion for a stay -- but they certainly hint at the arguments that are going to play out as this case goes forward.
Google's brief also includes one rather important new piece of information
: after the ruling came out, the Copyright Office rejected
Garcia's attempt to register that same copyright.
While this lawsuit was pending, Garcia
also was pursuing her copyright on another front. On September 25, 2012, she
filed an application with the U.S. Copyright Office in order to comply with 17
U.S.C. § 411(a), which requires such an application as a prerequisite to any
copyright infringement suit. On December 18, 2012, however, the Copyright
Office wrote to Garcia’s lawyer and informed her that, barring further information
from Garcia, Garcia was not entitled to register a copyright.... “For
copyright registration purposes, a motion picture is a single integrated work,” it
wrote. “Assuming Ms. Garcia’s contribution was limited to her acting
performance, we cannot register her performance apart from the motion picture.”
... The Copyright Office informed Garcia’s lawyer that unless she could provide
further information about Garcia’s role, her application would be rejected....
Garcia responded by asking the Copyright Office to delay its adjudication of her
application until after the panel ruled in this case....
On March 6, 2014, the Copyright Office issued a letter rejecting Garcia’s
application.... It explained that “the U.S. Copyright Office * * * views
dramatic performances in motion pictures to be only part of the integrated work—
the motion picture” and that the Office’s “longstanding practices do not allow a
copyright claim by an individual actor or actress in his or her performance
contained within a motion picture.”.... The Office
also explained why it was inappropriate for it to delay its ruling during the
pendency of this case. Citing 17 U.S.C. § 411(a), it wrote that “Congress expressly
envisioned that registration decisions by the Register of Copyrights would precede
adjudication in the courts” so that the courts have the benefit of the Copyright
Office’s decision and so that the Office can intervene to defend that decision....
When applicants institute lawsuits prior to the Copyright Office’s decision, it
explained, “the Register’s statutory right to intervene in an action instituted
pursuant to a refusal to register is nullified.”
While I often disagree with the Copyright Office on things, nearly everyone should at least agree that it tends to lean towards a more copyright maximalist point of view, happy to allow copyrights on nearly everything. For even it to reject the copyright here, and do so forcefully, suggests that Judge Kozinski's ruling is way out of line -- and, at the very least, deserves a more thorough rehearing.
Google goes on to explain why, even without this, the original order should be put on the shelf while the court reconsiders, again making a very compelling argument that Garcia has no copyright interest and no case. I won't rehash the arguments here, but they're worth reading. At the very least, it's difficult to see how anyone (even those who agreed with the original order) can't see how the ruling is controversial, raises serious issues, and deserves to be stayed until the court can make sure this is the result it thinks is appropriate.
on the other hand, dispenses with careful legal logic, and plays heavily on emotion -- reprinting some of the "death threats" Garcia received for her appearance in the video. While these were, no doubt, distressing to Garcia, that is unrelated to the actual copyright question at play here, and seem designed solely to lead to an emotional reaction, like the one it appears Judge Kozinski had. Even when the filing does delve into making actual legal arguments, they seem questionable. For example, Garcia's lawyer dismisses the idea that appearing in only 5 seconds of the film has any bearing on the copyright question, and even quotes Judge Learned Hand saying: "no plagiarist can excuse the wrong by showing how much of his work he did not pirate." But that's both misleading and not applicable here. This is not an issue of plagiarism. It's a question of copyright infringement, and de minimis use and fair use (where the amount of the work plays a key role) are well established. To pretend that these issues are meaningless is to ignore some rather basic copyright law (though, so is claiming that an actress has a copyright interest in a movie).
Reading through the two motions you get a sense of two very different levels of expertise concerning copyright law. On top of that, a third filing
, from lawyer Andrew Bridges representing a bunch of internet companies, including Automattic, Twitter, Facebook, Pinterest and IAC (and indicating more may soon sign on), suggests that a large part of the internet ecosystem is about to weigh in on why Kozinski's ruling is absolutely insane as well. Hopefully, the court at least recognizes that it should rehear the question of whether or not a stay should be granted on the original prior restraint order.