This is the case I blogged about Wednesday (with a follow-up on the temporary secrecy order). Now there’s an emergency motion for stay pending rehearing en banc, filed by top Supreme Court lawyer and Georgetown law professor Neal Katyal:
The merits panel in this case has issued an unprecedented, sweeping injunction directing Google and YouTube to take down a film — “Innocence of Muslims” — across all their platforms and prevent it from being uploaded again. That injunction is wrong on the merits and will cause Google, YouTube, and the public irreparable harm. The Court should stay the panel’s takedown order pending disposition of the movants’ upcoming petition for rehearing en banc.
The panel majority’s takedown order contravenes Circuit law by imposing a mandatory injunction — an injunction gagging speech, no less — even though the majority found the merits “fairly debatable.” Op. 10. The majority’s novel copyright analysis is wrong on several fronts, creates splits in the Ninth Circuit, and will produce devastating effects: Under the panel’s rule, minor players in everything from Hollywood films to home videos can wrest control of those works from their creators, and service providers like YouTube will lack the ability to determine who has a valid copyright claim. And absent a stay, Google, YouTube, and the public face irreparable harm because the panel’s order will gag their speech and limit access to newsworthy documents — categorically irreparable injuries.
The stay seems to be addressed to the court’s order that Google “take all reasonable steps to prevent further uploads of ‘Innocence of Muslims,’” since Google reports that it has complied with the court’s order to “take down ‘all copies’ of the video ‘”Innocence of Muslims” from YouTube.com and from any other platforms under Google’s control.'”
(Disclosure: I clerked for Chief Judge Kozinski, who wrote the opinion, and consider him a personal friend. I have also done some legal work for Google, but not on any matter related to this case.)