The Washington Post

(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 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.



Success! Check your inbox for details. You might also like:

Please enter a valid email address

See all newsletters

Show Comments

Sign up for email updates from the "Confronting the Caliphate" series.

You have signed up for the "Confronting the Caliphate" series.

Thank you for signing up
You'll receive e-mail when new stories are published in this series.
Most Read



Success! Check your inbox for details.

See all newsletters

Your Three. Videos curated for you.
Play Videos
Making family dinnertime happen
Deaf banjo player teaches thousands
New limbs for Pakistani soldiers
Play Videos
A veteran finds healing on a dog sled
Learn to make this twice-baked cookie
How to prevent 'e-barrassment'
Play Videos
Syrian refugee: 'I’m committed to the power of music'
The art of tortilla-making
Michael Bolton's cinematic serenade to Detroit
Play Videos
Circus nuns: These sisters are no act
5 ways to raise girls to be leaders
Cool off with sno-balls, a New Orleans treat
Next Story
David Bernstein · February 27, 2014

To keep reading, please enter your email address.

You’ll also receive from The Washington Post:
  • A free 6-week digital subscription
  • Our daily newsletter in your inbox

Please enter a valid email address

I have read and agree to the Terms of Service and Privacy Policy.

Please indicate agreement.

Thank you.

Check your inbox. We’ve sent an email explaining how to set up an account and activate your free digital subscription.