(Temporarily) secret order for removal of “Innocence of Muslims” videos

I blogged yesterday about the Ninth Circuit’s copyright law decision ordering YouTube to remove the “Innocence of Muslims” video, and I explained that I think the decision is probably right as a matter of copyright law, given that the video likely infringed the plaintiff -actress’s copyright. (I also argued that the video should still be uploadable without the scene containing the actress, and that there is a good claim — though one not made so far by YouTube — that display of the video is a fair use. Indeed, the film appears to be available elsewhere, such as at LiveLeak, though I’m not sure whether that’s an authentic and full copy; if LiveLeak is sued, I would hope that it would raise a fair use defense.)

But I hadn’t focused on an odd twist with the case: The original order was issued a week earlier (Feb. 19), together with an order that YouTube and its lawyers not talk about the order (emphasis added):

Google, Inc. shall take down all copies of “Innocence of Muslims” from YouTube.com and from any other platforms under Google’s control, and take all reasonable steps to prevent further uploads of “Innocence of Muslims” to those platforms. Google shall comply with this order within twenty-four hours of the issuance thereof. Neither the parties nor counsel shall disclose this order, except as necessary to the takedown process, until the opinion in this case issues. This order will remain in effect until such time as the district court enters a preliminary injunction consistent with our opinion.

Google objected on Feb. 20, and the court explained on Feb. 21 (emphasis added):

Appellees’ emergency stay motion is denied. The opinion in this case is currently scheduled to issue on Wednesday, February 26, 2014. The opinion reverses the denial of the preliminary injunction and provides a detailed explanation. The order of February 19, 2014, was issued in advance of the opinion to prevent a rush to copy and proliferate the film before Google can comply with the order. Neither the parties nor counsel shall disclose this order or the order of February 19 until the opinion is actually published.

I understand the court’s concern about making sure that its order was effective in securing to the winning plaintiff the relief to which the court said it was entitled (i.e., the removal of likely infringing copies, rather than the broad dissemination of such infringing copies while they were being removed). And, traditionally, courts have had some more authority over the out-of-court speech of litigants (including defendants, who had been brought into court involuntarily) than over the speech of third parties. Moreover, the restriction operated only for a week, simply moving the debate over the order from last week to this week; nor was the debate particularly time-sensitive (e.g., as it would have been had last week been the end of a political campaign, or the middle of some foreign policy debate).

Nonetheless, even short speech restrictions have, for good reasons, been seen as raising substantial First Amendment questions, and the questions are made more substantial by the newsworthiness of the event — the removal of an extremely controversial video — that YouTube (and its parent, Google) was barred from talking about. I therefore thought the matter was worth noting.

(Disclosure: I clerked for Chief Judge Kozinski, who wrote the panel opinion, and consider him a personal friend. I have also done some legal work for Google, such as writing this commissioned white paper, but not on any matter related to this case.)

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit. Volokh is the author of the textbooks The First Amendment and Related Statutes (4th ed. 2011), The Religion Clauses and Related Statutes (2005), and Academic Legal Writing (4th ed. 2010), as well as over 70 law review articles. Volokh is also an Academic Affiliate for the Mayer Brown LLP law firm.
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