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En Banc 9th Reverses Course, Lifts 'Innocence of Muslims' Ban

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By Casey C. Sullivan, Esq. on May 20, 2015 3:56 PM

The Ninth Circuit, sitting en banc, reversed an earlier injunction preventing Google and YouTube from hosting the controversial "Innocence of Muslims" film. That short, offensive and highly controversial film lead to violence and rioting in Egypt and elsewhere. It was briefly blamed for the attack on a U.S. embassy in Benghazi, Libya.

Cindy Garcia, one of the actresses whose performance was manipulated in the film, had originally convinced the Ninth Circuit that she had a copyright interest in her scene, resulting in the take down order. That widely criticized decision was reversed today, with the court ruling that the prior decision got not just copyright law, but the First Amendment wrong.

Not Exactly Academy Awards Material

Garcia had originally performed for what she thought was "Desert Warrior." That footage was transformed into a bit part -- five highly dubbed seconds -- in the "Innocence of Muslims," a "blasphemous video proclamation against the Prophet Mohammed," as the Ninth describes it. The film, which depicted the religious figure as "a buffoon, a womanizer, a homosexual, a child molester and a greedy, bloodthirsty thug" was connected to demonstrations and violence in the Middle East which resulted in over 50 deaths.

Faced with threats and not wanting to be associated with the terrible film, Garcia sued, alleging that she had a copyright interest in her performance. When the case reached the Ninth, Judge Kozinski agreed, in a questionable 2-1 opinion, and enjoined any posting or display of the film that included Garcia's performance. The opinion was widely panned by legal commentators and, now, by the rest of the Circuit.

Wrong on Copyright, Wrong on Free Speech

In her suit, Garcia claimed that she suffered threats, emotional distress and the destruction of her career because of the film's use of her performance. But those aren't the type of injuries copyright claims redress, the Ninth noted. Indeed, the purpose of copyright law is to encourage public access to creative works. The harms Garcia alleged were too far removed for the purpose of copyright.

Kozinski's was also wrong on First Amendment grounds. The mandatory injunction "censored and suppressed a politically significant film -- based on a dubious and unprecedented theory of copyright." It was a classic prior restraint of speech.

Judge Kozinski, for his part, held strong to his earlier decision. The lone dissenter, he argued that the Ninth's ruling undermined the rights of artists and even, God forbid, threatened "The Lord of the Rings" franchise. He did not, however, address any of the First Amendment issues raised.

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