By Scott Graham, The Recorder

Controversy has followed “Innocence of Muslims” ever since the 14-minute video was uploaded to YouTube and dubbed into Arabic. After provoking violent and sometimes deadly protests around the world, the film is now setting off a legal firestorm at the U.S. Court of Appeals for the Ninth Circuit.

The combination of Google’s uncompromising litigation position on behalf of its subsidiary and Chief Judge Alex Kozinski’s outside-the-box handling of the case, which included a secret takedown order that Google was forbidden from making public for a week, has proven highly combustible in technology, media, motion picture and academic circles—and apparently even the court itself.

At least one Ninth Circuit judge called for en banc review of Kozinski and Judge Ronald Gould’s refusal to stay their decision pending further appellate review. On Friday afternoon the court announced that it would not reconsider the stay order en banc.

It would be rare for the court to convene en banc to reconsider an order, Ben Feuer of the California Appellate Law Group said earlier last week, though the court’s rules do provide for it.

Google’s petition for rehearing on the merits remains pending, and earlier this month the U.S. Copyright Office took a position directly at odds with Kozinski’s.

Feuer said anything could happen in a case like Garcia v. Google, where existing law and precedents did not anticipate technology that allows billions of people around the world to watch a video. “There’s just no easy answer here,” he said.

On Feb. 26 the Ninth Circuit issued its public opinion ordering Google to take down the film clip from YouTube, granting the preliminary injunction requested by an actress who argued that its continued broadcast infringed her performance copyright and jeopardized her safety.

If Kozinski’s panel opinion stands, it will mark the third major loss for Google before the Ninth Circuit in the last six months. In September the court declined to dismiss a privacy class action stemming from Google’s Street View project. In January the court turned down Google’s (and Apple, Intel and Adobe System’s) bid for early appellate review of a class action alleging they conspired not to recruit each other’s employees.

Google has been criticized in some quarters for refusing Garcia’s request to take down the video. Kozinski seemed to echo that sentiment in his opinion. “It’s disappointing, though perhaps not surprising, that Garcia needed to sue in order to protect herself and her rights,” he wrote.

Google is represented by Perkins Coie partner Timothy Alger, a former Google deputy GC. The company has added Hogan Lovells partner Neal Katyal in its bid for en banc proceedings.

Making Movies

Cindy Lee Garcia says she was paid $500 to appear in a low-budget adventure movie with the working title “Desert Warrior.” But the movie’s writer-producer, Mark Basseley Youssef, transformed it without her knowledge into the anti-Islamic “Innocence of Muslims.” During the five seconds in which Garcia’s character appears, her voice is partially overdubbed so that she appears to be asking, “Is your Mohammed a child molester?”

“These, of course, are fighting words to many faithful Muslims,” Kozinski wrote in his opinion. An airing of the film on Egyptian television sparked protests that led to worldwide news coverage, and an Egyptian cleric issued a fatwa that called for the killing of everyone involved in the film.

Garcia’s appellate briefs are peppered with examples of the many death threats she’s received. She’s been banned from La Guardia Airport because of the security risk she presents. Her attorney, M. Cris Armenta, has been asked to inform court security whenever Armenta visits Los Angeles Superior Court, even on unrelated matters.

“Ms. Garcia’s life has changed in ways that most people cannot imagine,” Armenta wrote in court papers, “all because a convicted fraudster lied to trick her into appearing in a film that then went ‘viral’ on Google and YouTube’s worldwide platforms.”

As it happens, Kozinski is a renowned movie buff. Several times a year he screens “Kozinski’s Favorite Flicks” for courthouse staff and friends, often presenting insights from individuals involved with the creation of the featured movie. His son works as a film editor. “He knows what he’s doing” with the Garcia opinion, says Feuer, “and he knows what it means.”

Kozinski ruled that Garcia held a copyright interest as an actor whose performance evinced at least a minimal level of creativity. Because she’s facing credible threats of death or bodily injury, she’s shown a likelihood of irreparable harm justifying an injunction removing the video from YouTube.

“We need not and do not decide whether every actor has a copyright in his performance within a movie,” Kozinski wrote. “It suffices for now to hold that, while the matter is fairly debatable, Garcia is likely to prevail.”

Judge N. Randy Smith dissented, saying, “The majority makes new law in this circuit in order to reach the result it seeks. We have never held that an actress’s performance could be copyrightable.”

Acting in Secret

While the ruling itself made headlines across Hollywood and Silicon Valley, it’s what happened in secret a week earlier that the full court briefly reconsidered. The court issued a sealed order directing Google to take down all copies of “Innocence of Muslims” from YouTube.com and any other platform under the company’s control. “Neither the parties nor counsel shall disclose this order, except as necessary to the takedown process, until the opinion in this case issues,” the order stated.

Google moved for an emergency stay the next day, which the panel denied, although it later allowed Google to display versions of the movie that have excised Garcia’s performance.

PHOTO: Chief Judge Alex Kozinski, United States court of appeal for the Ninth Circuit

Jason Doiy

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