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March 17 --The U.S. Court of Appeals for the Ninth Circuit may still decide en banc whether a panel's issuance of a broad and controversial injunction in a copyright dispute between an actor and Google was in error, but it will not sit en banc to review the panel's later denial of an emergency motion to stay that injunction, (Garcia v. Google, Inc., 9th Cir., No. 12-57302, 3/14/14).
The March 14 denial of en banc review was in response to an unusual sua sponte request by an appellate judge to grant full-circuit review to the court's refusal to stay an earlier injunction that was issued pursuant to a 2-1 opinion finding that the plaintiff, Cindy Garcia, was likely to prevail on her copyright infringement claims against Google Inc. (39 PTD, 2/27/14). That decision, which was authored by Chief Judge Alex Kozinski , ruled that Garcia, who alleged that she was duped into appearing in a YouTube film that was disparaging of Islam and the Prophet Muhammad, had established a likelihood of success on the merits of her claim that the film producers had infringed her independent copyright interest in the movie.
The court's opinion sparked a deluge of criticism, with some arguing that the injunction, which required Google to take down all copies of “The Innocence of Muslims,” whether Garcia appeared in the copies or not, chilled free speech (41 PTD, 3/3/14). Others argued that the decision would have important practical implications within the entertainment industry as actors had never before been deemed to have separate copyrightable interests in productions. Google filed an emergency motion to stay the injunction, which was denied on Feb. 28, although the court did amend the injunction so only videos in which Garcia appeared were required to be taken down. The sua sponte request was filed in response to the Feb. 28 decision denying Google's emergency motion.
Although a majority of the non-recused judges declined to grant en banc review of the panel's refusal to stay the injunction, the March 14 order has no practical effect on Google's motion for hearing en banc that was filed March 12. A March 13 scheduling order gave Garcia 21 days to file a response to Google's petition for en banc review. Amici briefs must be filed within 10 days of Garcia's response.
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