Why We Filed An Amicus Brief In Garcia v. Google: Blaming 3rd Parties Has Serious Impact On Free Speech

from the not-just-about-copyright dept

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Monday was the deadline for amici briefs over whether or not the 9th Circuit should rehear, en banc, the Garcia v. Google debacle, in which Alex Kozinski made a bunch of highly questionable decisions in ruling that actress Cindy Lee Garcia deserves a copyright in her 5-second performance shown in the controversial 13-minute "trailer" known as. The 9th Circuit made it clear that it would welcome briefs from anyone who wanted to file them, and a bunch of organizations and companies have been lining up to do so. You can see the full list of briefs here , though at the time I write this, it's still being updated. If I get the chance I'll try to review some of the other briefs soon. However, I wanted to write about one such brief first: ours.After some consideration, we teamed up with the Organization for Transformative Works to file our own brief concerning "intermediary liability." While the 9th Circuit noted it would accept briefs from all interested parties, itsaid those briefs had to be shorter than 2,500 words, which is not a lot of space to make complex legal arguments. We fully expected many others to focus in on all of the (many, many) troublingaspects in Kozinski's ruling, but wanted to raise a separate (and, in some ways, larger) issue that was almost entirely ignored by the ruling: that third parties should not be blamed for the actions of their users -- and that Judge Kozinski's broad injunction did just that.Lawyer Cathy Gellis wrote up an amicus brief on our behalf, highlighting Congress's clear intent in both Sections 230 of the CDA and 512 of the DMCA in providing safe harbors from liability for third parties, in order to encourage them to support free and open dialogue and discourse online, without fear of legal repercussions. As our brief argues, while many have ignored Section 230 (which excludes intellectual property), it should be quite clear that Garcia's case was really nothing more than an attempt to misuse copyright law in order toSection 230 and to hold a third party liable. Furthermore, as we've noted in the past, Judge Kozinski's injunction appears to go well beyond what the law says is appropriate in responding to copyright claims.There is a reason why Congress was so intent on providing safe harbors, recognizing the incentives for broad censorship when you blame service providers for the actions of their users. Judge Kozinski appears to have ignored nearly all of Congress' intent in his ruling, and we're hopeful that (among the many other reasons why his ruling should be reviewed), the rest of the 9th Circuit will recognize that the original ruling has serious First Amendment implications, beyond just the basic copyright questions.

Filed Under: amicus brief, cda, cindy garcia, cindy lee garcia, copyright, dmca, free speech, innocence of muslims, intermediary liability, safe harbors, section 230, third party liability

Companies: floor64, google, organization for transformative works, youtube