ISPs Plead for 9th Circuit to Reverse Panel's Injunction in Garcia v. Google
The safe harbor protections of ISPs and free speech rights of consumers hang in the balance as the 9th U.S. Circuit Court of Appeals’ full panel prepares to hear Garcia v. Google, said pro-Google briefs filed Tuesday and Wednesday. But a neutral brief by a group of law professors cautioned against overstating the threat of 9th Circuit's previous ruling by a three-judge panel (see 1407140071). Peter Menell, University of California-Berkeley law professor, and David Nimmer, a scholar at the Berkeley Center for Law and Technology, were among those filing that brief. Oral argument is set for Dec. 15 in Pasadena, California, according to the court’s calendar.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The court ordered in February that Google remove all copies of the Innocence of Muslims -- a film associated with the attacks on the U.S. Embassy in Benghazi, Libya -- from Google-owned YouTube, after Cindy Lee Garcia asked Google to take down the video once she began receiving death threats due to her minor acting role in the movie. Free speech advocates, such the Electronic Frontier Foundation and the Center for Democracy & Technology, decried the ruling as both a violation of free speech and an abuse of copyright law (see 1403030087). The 9th Circuit panel upheld its 2-1 decision in July.
"Based on an absurd copyright claim, the Ninth Circuit issued an order requiring an online platform to edit the historical record," said EFF Intellectual Property Director Corynne McSherry in a news release Tuesday. "The ruling may have been well-intentioned, but it was both bad law and bad policy and that will have dangerous consequences for future creators," she said. "Ms. Garcia understandably wants to distance herself from this film,” but the claiming copyright infringement isn’t the proper avenue, said EFF Staff Attorney Vera Ranieri in the release. "If allowed to prevail, this case will prompt abuse of the copyright system and chill protected speech,” she said. EFF, CDT and other groups filed their brief Tuesday.
“This case presents a highly unusual and highly charged controversy, leading litigants and amici to put forward extreme solutions that risk distorting the copyright system,” said the brief from Menell, Nimmer and others. “While sympathetic to the concerns raised by ISPs, we do not believe these dire predictions are warranted,” it said. “There is little reason to believe that faithful interpretation of the Copyright Act and application of fundamental copyright principles would produce unreasonable burdens on ISPs,” it said. “And if they did, those concerns are more properly directed toward Congress.”
The 9th Circuit panel’s order was “contrary” to the court’s “precedent and denies the public’s interest in free expression and access to information,” said Adobe Systems, Facebook, Twitter and others in a joint brief. That order “erroneously assumes that service providers can determine whether a particular use of a copyrighted work is authorized or not, and the ruling also poses a serious threat to online service providers’ businesses,” it said. “Copyright remedies should focus on copyright concerns and do not deserve wild expansion to accommodate non-copyright interests.”
Section 230 of the Communications Decency Act is “unequivocal in the immunity it provides intermediaries, standing for the proposition that they are only responsible for what they themselves communicate through their systems, not what others use them for,” said a joint brief by the Organization for Transformative Works and Floor64, a tech startup consultant. The 9th Circuit panel “undermined Congress’s goal of fostering online speech by effectively stripping intermediaries of the statutory protection they depend on to deliver content others create,” it said.