I'm sure you'll see this morning's opinion by Judge Kozinski talked about in various places, since it's a high-profile case. The Ninth Circuit, over the dissent of Judge Randy Smith, orders Google to remove "Innocence of Muslims" from YouTube on the ground that one of the actors, Cindy Garcia, is entitled to a preliminary injunction because she has a copyright in her performance and was lied to when she was told she was acting in a "regular" movie rather than in an anti-Islamic film.
For that reason, I'm going to largely leave the case alone. Apart from merely mentioning it.
The Ninth Circuit's clearly making new law here. Whether it's good (versus bad) new law is another question. But it's clearly new.
I think Judge Smith has a pretty good point that (1) district courts are given a pretty large amount of discretion with preliminary injunction decisions, and it's fairly aggressive for the Ninth Circuit to step in and reverse the district court here, and (2) mandatory injunctions -- like ordering Google to take down the movie -- are subject to even more scrutiny. So even apart from the merits, procedurally, what the Ninth Circuit is doing here is definitely on one side of the spectrum.
That said, if there was ever a case in which a Court of Appeals wanted to make new law that gave actors copyright interests in their performance, this is surely the best vehicle imaginable. An actress gets paid $500 to have a tiny role in a movie she's told is called "Desert Warrior" and it turns out to be an anti-Islam movie that subjects the actress to a fatwa. You can see why those facts might potentially impel a tribunal to want to protect the plaintiff.
You also know what they say about good facts making bad law.
It'll be interesting to see if this one stands. In the meantime, good luck watching this thing on YouTube. This is what you'll see. Since the Ninth Circuit enters an immediate order that compels Google to take it down.
Of course, information wants to be free. And it's virtually impossible to sue everyone. So you can still see the full movie in plenty of places.
