After months of waiting, a Ninth Circuit panel has finally responded to Google's plea, supported by public interest groups (including EFF), journalists, librarians, other service providers, and law professors, to reconsider its disastrous opinion in the case of Garcia v. Google. The good news is that we managed to get the panel to revisit its opinion. The bad news is that it essentially doubled down.

Quick background: several months ago, and over a vigorous dissent, a panel majority ordered Google to remove copies of the notorious Innocence of Muslims film from YouTube. Why? Because one of the actors in the film insists she has a copyright interest in her performance and, based on that interest, claims to have a right to have the video taken offline. Actress Cindy Lee Garcia—who was tricked into appearing on-screen, overdubbed, for five seconds—sued Google to have the footage removed. The district court refused and Garcia appealed. The Ninth Circuit concluded Garcia's copyright claim was "doubtful" but nonetheless ordered Google to remove the film from YouTube and take steps to prevent future uploads.

The uproar was immediate, for good reason. As we and others explained, the order amounts to a prior restraint of speech, something that should never happen where the underlying claim is "doubtful." (In fact the Copyright office later refused to register Garcia's performance). The majority dismissed that concern by claiming that the First Amendment doesn’t protect copyright infringement, which missed the point. The First Amendment does protect lawful speech, which is why courts shouldn’t issue censorship orders in any but the rarest circumstances, and only where it is highly likely that the speech is actually unlawful. What is worse the panel’s ruling was accompanied by a gag order forbidding Google from discussing the ruling for almost a week.

The amended opinion issued today recognizes some of our concerns but continues to sidestep the key issues. Notably, the amended opinion does not address our most basic concern: that the court applied the wrong standard altogether. The takedown order was a mandatory preliminary injunction, which should never occur unless the law and the facts clearly favor the person asking for it. What is worse, the court gave short shrift to the public interest. Innocence of Muslims is doubtless a highly offensive video, but it is also part of the historical record. Thanks to the injunction, the public can continue to discuss the video—but we can't see what we are discussing.

The amended opinion dismissed several other concerns on procedural grounds, insisting that the district court can consider them later:

Nothing we say today precludes the district court from concluding that Garcia doesn’t have a copyrightable interest, or that Google prevails on any of its defenses. ... After we first published our opinion, amici raised other issues, such as the applicability of the fair use doctrine, see 17 U.S.C. § 107, and section 230 of the Communications Decency Act, see 47 U.S.C. § 230. Because these defenses were not raised by the parties, we do not address them. The district court is free to consider them if Google properly raises them.

And:

First Amendment protections are ‘embodied in the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas,’ and in the ‘latitude for scholarship and comment’ safeguarded by the fair use defense.” Golan v. Holder, 132 S. Ct. 873, 890 (2012) (quoting Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985)). Google hasn’t raised fair use as a defense in this appeal, see page 11 supra, so we do not consider it in determining its likelihood of success. This does not, of course, preclude Google from raising the point in the district court, provided it properly preserved the defense in its pleadings.

This is profoundly disappointing. When a case clearly implicates the public's right to access the historical record, courts shouldn't kick the can down the road. And as the amended dissent recognizes, the panel had ample legal authority to address the flaws in its opinion, rather than referring them to another court.

Google's request for a rehearing en banc (i.e., a rehearing by the entire court rather than just a three-judge panel) is still pending, so the Ninth Circuit has another chance to revisit the case. Let's hope it does so.