Judge Seeks Stay of Takedown Order for 'Innocence of Muslims'

Judge Seeks Stay of Takedown Order for 'Innocence of Muslims' Jason Doiy Chief Judge Alex Kozinski, United States Court of Appeals for the Ninth Circuit

SACRAMENTO — A judge on the U.S. Court of Appeals for the Ninth Circuit has asked for an en banc reconsideration of Google Inc.’s denied motion to keep a controversial movie posted on YouTube while a legal challenge proceeds.

The request, from an unnamed judge, challenges a Feb. 28 order by a three-judge panel denying Google’s petition for an emergency stay of an order directing the company remove the anti-Islamic “Innocence of Muslims” from YouTube.com.

Judge Sidney Thomas, the court’s en banc coordinator, ordered parties on Thursday to submit briefs on the request by March 12.

“While we should be careful not to read too much into it, it is a strong signal that there are concerns on the bench,” said Corynne McSherry, the intellectual property director at Electronic Frontier Foundation. “That suggests in turn, that any request for a broader rehearing of the whole decision has better odds of being granted.”

The legal maneuvering stems from a Feb. 26 opinion, authored by Chief Judge Alex Kozinski, that “Innocence of Muslims” likely infringed on one of its actress’s performance copyright and led outraged viewers to issue death threats against her. The 14-minute film fueled violent protests by Muslims who found the portrayal of the prophet Muhammad offensive. Fatwas were issued against the movie’s producer and other participants.

Although the movie trailer had been posted online for months, Kozinski and Judge Ronald Gould held that plaintiff Cindy Lee Garcia had made a timely and reasonable request to take it down. Dissenting Judge N. Randy Smith accused the majority of crafting new law “in order to reach the results it seeks. We have never held that an actress’s performance could be copyrightable,” Smith wrote.

Google officials announced they would challenge the decision, but they could not persuade the panel to let “Innocence of Muslims” stay online while they appealed. The Kozinski panel did note that YouTube was free to post any version of the film clip that does not include Garcia.

In his March 6 order, Thomas noted that the en banc call was limited to the stay order only and that “any further proceedings as to the panel opinion, including any petitions for rehearing and rehearing en banc, will be considered separately.”

Contact the reporter at cmiller@alm.com.

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