Things had been a bit quiet on the Garcia v. Google front for the past few months. As you may recall, this was the ridiculous legal fight, in which an actress, who was in the infamous "Innocence of Muslims" film, sued Google for not taking down the video after she made a copyright claim on it. The district court rightly laughed that argument out of court, noting that as an actress in the film, she had no copyright interest in the film. However, in a move that left nearly everyone in the copyright world scratching their head, on appeal, famed judge Alex Kozinski basically made up an entirely new section of copyright law to say that she did, in fact, have a copyright interest
in her role in the film, and
that because of that, Google was ordered to remove every copy
of the entire film
from its sites and that Google couldn't talk about it for a period of time.
Once all this came out there was an immediate uproar and a variety of challenges. Kozinski shot down
an emergency motion to stay the ruling, but did amend the original order to admit that copies of the video without
the scene including Cindy Lee Garcia could remain up on the site. Still, another judge on the court actually asked the entire court
to reconsider, and Google asked the entire court to reconsider the entire case, leading a whole bunch of folks to weigh in -- all on the side of Google. Even we weighed in
in a filing written by lawyer Cathy Gellis, highlighting how Congress clearly intended to protect intermediaries from liabilities in situations like this.
Things had been entirely silent on the case for a really long time, but this morning, the court issued "an amended opinion,"
which appears to be Kozinski both doubling down
on his original, ridiculous ruling while at the very same time offering a bunch of outs
for the lower court to fix what Kozinski himself totally screwed up. It's the most bizarre type of tap dancing you'll see in a judicial ruling in a long time. Basically, for all of the arguments that show why Kozinski is wrong, he just puts his arms up and says "hey, no one raised that issue, so we ignored it."
Nothing we say today precludes the district court from
concluding that Garcia doesn’t have a copyrightable interest,
or that Google prevails on any of its defenses. We note, for
example, that after we first issued our opinion, the United
States Copyright Office sent Garcia a letter denying her
request to register a copyright in her performance. Because
this is not an appeal of the denial of registration, the
Copyright Office’s refusal to register doesn’t “preclude a
determination” that Garcia’s performance “is indeed
copyrightable.” .... But the district court may still defer to
the Copyright Office’s reasoning, to the extent it is
After we first published our opinion, amici raised other
issues, such as the applicability of the fair use doctrine..., and section 230 of the Communications
Decency Act.... Because these defenses
were not raised by the parties, we do not address them. The
district court is free to consider them if Google properly
That latter issue, of how Section 230 is relevant here, is the one that we raised in our brief, so it's nice that he "acknowledges" that it exists here, but this is still a pretty weak response.
Later, he does this again with the First Amendment argument. In the original, he totally dismissed any First Amendment questions with a breezy (and misleading) "the First Amendment doesn't protect copyright infringement." Here he tries to "clarify" that by admitting that "oh yeah, there's fair use," but it doesn't matter since Google didn't raise fair use:
“First Amendment protections are ‘embodied in the Copyright Act’s
distinction between copyrightable expression and
uncopyrightable facts and ideas,’ and in the ‘latitude for
scholarship and comment’ safeguarded by the fair use
defense.” ... Google hasn’t raised fair use as
a defense in this appeal, see page 11 supra, so we do not
consider it in determining its likelihood of success. This does
not, of course, preclude Google from raising the point in the
district court, provided it properly preserved the defense in its
Of course all of this ignores the basic fact that none of those arguments made sense at all because it was absolutely ridiculous to argue that an actress had a copyright interest in a film in the first place. It's long been established that that's simply not true. Furthermore, as the new dissent snarkily points out in a footnote, Kozinski's desire to avoid addressing these rather obvious flaws in his own argument are pretty damning:
The majority’s amended opinion also attempts to hedge its conclusion
that Garcia has a copyright interest in her acting performance by avoiding
counter arguments it failed to address, because they were not raised by the
parties. Maj. op. at 11, 19. Yet, the majority could consider these
arguments sua sponte “under exceptional circumstances, where substantial
public interests are involved, or where to not do so would be unduly harsh
to one or both of the parties.” ... The majority’s failure to even engage this inquiry, instead
quickly dismissing arguments against its view, confirms its error
This amended ruling is a bizarre look into the mind of Judge Kozinski. He seems to recognize that he messed up royally in the original decision... but he's too proud to let it go. So, instead, he's basically doubling down on his original, questionable reasoning, while adding in all these ways that the impact of his own terrible decision might effectively be minimized, if only people raised a variety of defenses that shouldn't have mattered in the first place, if Kozinski hadn't read the law so incredibly wrong. Even if it does go back to the district court, and the court rules correctly under Kozinski's "new" rules, the original precedent would still stand.
Of course, this process isn't even close to over. The ruling notes that the court is still
considering an en banc rehearing with a larger panel of judges from the 9th Circuit, who would hopefully overrule Kozinski entirely, and drop this horrible precedent. But, for now, we have to wait, and live with Kozinski's unwillingness to admit to his mistakes.