Academic journal article Harvard Law Review

First Amendment - Prior Restraints - Ninth Circuit Calls Preliminary Injunction in Copyright Infringement Suit a Prior Restraint

Academic journal article Harvard Law Review

First Amendment - Prior Restraints - Ninth Circuit Calls Preliminary Injunction in Copyright Infringement Suit a Prior Restraint

Article excerpt

First Amendment--Prior Restraints--Ninth Circuit Calls Preliminary Injunction in Copyright Infringement Suit a Prior Restraint.--Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) (en banc).

"Prior restraints"--administrative and judicial orders that forbid future speech from taking place (1)--are "the least tolerable infringement on First Amendment rights." (2) According to the Supreme Court, a preliminary injunction is a prior restraint if it censors speech before "an adequate determination" that the First Amendment doesn't protect the speech. (3) These kinds of injunctions are "presumptively unconstitutional." (4) But when it comes to preliminary injunctions in copyright suits--which also often censor speech (5)--courts have ignored the Supreme Court's First Amendment concerns almost entirely. (6) Recently, in Garcia v. Google, Inc., (7) the Ninth Circuit, sitting en banc, dissolved a preliminary injunction in a copyright infringement suit, calling the injunction a "prior restraint." (8) By doing so, the court created a tension within the Ninth Circuit's doctrine on prior restraint. Lower courts may now need to sort through difficult constitutional issues that Garcia left unanswered.

In July 2011, Cindy Lee Garcia answered a casting call for Desert Warrior, an action-adventure film set in ancient Arabia. (9) Garcia was cast in a cameo role. (10) Unbeknownst to her, the film's writer-director, Mark Basseley Youssef, later used the footage he gathered to create an anti-Islam polemic titled Innocence of Muslims. (11) The film depicted the Prophet Mohammed as a murderer and pedophile. (12) Film producers dubbed over Garcia's lines to make it appear as though she was asking, "Is your Mohammed a child molester?" (13) In June 2012, Youssef uploaded a thirteen-minute-and-fifty-one-second trailer of Innocence of Muslims to YouTube. (14) Garcia appeared in the trailer for five seconds. (15) The clip "fomented outrage" across the Middle East, and was allegedly linked to the 2012 attack on the U.S. Consulate in Benghazi, Libya. (16) An Egyptian cleric issued a fatwa, calling upon Muslims to kill everyone involved in the film. (17) Garcia received numerous death threats. (18) In response, Garcia sent Google five takedown notices under the Digital Millennium Copyright Act, (19) claiming that YouTube's hosting of the video infringed her copyright in her "audio-visual dramatic performance." (20) Google refused to take down the film. (21)

On September 26, 2012, Garcia filed suit against Google in the U.S. District Court for the Central District of California, alleging copyright infringement. (22) Specifically, Garcia argued that her five-second performance in Innocence of Muslims was a copyrightable "work" under the Copyright Act of 1976, (23) and Google was infringing on her copyright by broadcasting her performance without her permission. (24) She later moved for a temporary restraining order on her copyright claim, which the district court treated as a motion for a preliminary injunction. (25) The court denied her motion. (26) It noted that under the Supreme Court's decision in Winter v Natural Resources Defense Council, Inc., (27) a plaintiff seeking a preliminary injunction must show: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm without an injunction; (3) that the balance of equities tips in her favor; and (4) that an injunction is in the public interest. (28) The court held that Garcia couldn't credibly claim that she'd suffer irreparable harm without immediate relief; after all, she had waited several months after the video was uploaded to YouTube to file suit. (29) It also held that Garcia couldn't demonstrate a likelihood of success on the merits. (30) Even assuming Garcia had a copyright interest in her performance, the court found that she had implicitly granted Youssef a license to use her performance in his finished film. (31)

A divided three-judge panel of the Ninth Circuit reversed. …

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