Opinion

Alison Frankel

Kozinski amends opinion in 9th Circuit ‘Innocence’ case v. Google

By Alison Frankel
July 15, 2014

Something strange happened Friday in the infamous case of Cindy Lee Garcia v. Google at the 9th U.S. Circuit Court of Appeals. Chief Judge Alex Kozinski, who wrote the opinion in February that enjoined Google from linking to the anti-Islam film “Innocence of Muslims,” filed an amended opinion, even as the entire 9th Circuit considers Google’s petition for en banc review of the controversial February ruling.

The amended opinion, in which Kozinski is joined by Judge Ronald Gould, left the injunction in place but walked back a step or two from the controversial holding that the actor Cindy Lee Garcia is likely to succeed on the merits of her claim that Google is infringing her copyrighted five-second performance in ‘Innocence.’ (Garcia, as you may recall, was deceived by the maker of the inflammatory film, who overdubbed her lines to make it appear as though her character was calling Mohammad a pedophile. The film led to riots in the Muslim world and death threats against Garcia.)

The panel’s original holding that actors may, in certain circumstances, have an independent copyright on their individual performances threw Hollywood, Internet companies and First Amendment fans into a tizzy; Google’s en banc petition attracted 10 amicus briefs from dozens of interested parties. The new opinion, which adds only a few paragraphs to the original, cautions that the 9th Circuit injunction does not dictate a finding that Garcia actually has a copyright on her performance nor that Google is not entitled to fair use of the copyrighted material.

The changes acknowledged a couple of the arguments Google and its friends made in their en banc briefing but said they shouldn’t change the outcome of the injunction case. Google, for instance, dropped a bombshell in its petition, revealing that the U.S. Copyright Office had just rejected Garcia’s application for a copyright on her performance under its longstanding policy that actors don’t have rights to individual performances within a film. The amended opinion said that U.S. District Judge Michael Fitzgerald of Los Angeles is welcome to defer to the Copyright Office’s decision when he decides the merits of Garcia’s infringement claim, but that the Copyright Office’s refusal to grant Garcia a copyright doesn’t preclude the 9th Circuit’s injunction.

Kozinski noted but brushed aside amicus arguments that Google was making fair use of Garcia’s performance through YouTube links to the anti-Islam film. “Because these defenses were not raised by the parties, we do not address them,” the amended opinion said. “The district court is free to consider them if Google properly raises them.”

The amended opinion drew an amended dissent from Judge Randy Smith, who dissented from the original injunction ruling as well. Smith’s new version said that the majority was deliberately ducking First Amendment issues that it should have considered. “The majority’s amended opinion  attempts to hedge its conclusion that Garcia has a copyright interest in her acting performance by avoiding counter arguments,” the amended dissent said. “The majority’s failure to even engage this inquiry, instead quickly dismissing arguments against its view, confirms its error.”

Amended appellate opinions are a rarity, and substantive changes, beyond correcting typos or mistaken citations, are rarer still. The circumstances here are stranger yet. Google’s appellate lawyers at Hogan Lovells asked for en banc review all the way back in March. Garcia counsel Cris Armenta filed her opposition brief in April, and the amici weighed in a week later. So the amended opinion and dissent came several months into the 9th Circuit’s consideration of whether to vacate the original ruling and hear the case anew. Was the amended opinion an attempt to soothe concerns among other 9th Circuit judges that the original ruling set troublesome copyright precedent? Will the amended opinion’s assurances that the trial judge may still side with Google persuade judges to vote against en banc rehearing?

David Madden, a 9th Circuit spokesman, said only that “a lot goes on behind the scenes” when the appeals court is considering en banc review. (He was speaking generally, not about this specific case.) The judges have no deadline, he said, for deciding whether to hear a case en banc.

I emailed lawyers for Google and Garcia but didn’t hear back.

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