Case: 12-57302, 05/18/2015, ID: 9540348, DktEntry: 197-1, Page 29 of 42
GARCIA V. GOOGLE
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no one’s surprise, the end result was the same: the entire film
remained removed from YouTube.
The takedown order was unwarranted and incorrect as a
matter of law, as we have explained above. It also gave short
shrift to the First Amendment values at stake. The mandatory
injunction censored and suppressed a politically significant
film—based upon a dubious and unprecedented theory of
copyright. In so doing, the panel deprived the public of the
ability to view firsthand, and judge for themselves, a film at
the center of an international uproar.
Although the intersection between copyright and the First
Amendment is much-debated,14 the Supreme Court teaches
that copyright is not “categorically immune from challenges
under the First Amendment.” Eldred, 537 U.S. at 221
(internal citation omitted). To be sure, this is not a case of
garden-variety copyright infringement, such as seeking to
restrain the use of copyrighted computer code. The panel’s
takedown order of a film of substantial interest to the public
is a classic prior restraint of speech. Alexander v. United
States, 509 U.S. 544, 550 (1993) (“Temporary restraining
orders and permanent injunctions—i.e., court orders that
actually forbid speech activities—are classic examples of
prior restraints.”). Prior restraints pose the “most serious and
the least tolerable infringement on First Amendment rights,”
Hunt v. NBC, 872 F.2d 289, 293 (9th Cir. 1989) (citation
omitted), and Garcia cannot overcome the historical and
14
See, e.g., Joseph P. Bauer, Copyright and the First Amendment:
Comrades, Combatants, or Uneasy Allies?, 67 Wash. & Lee L. Rev. 831
(2010); Mark A. Lemley & Eugene Volokh, Freedom of Speech and
Injunctions in Intellectual Property Cases, 48 Duke L.J. 147 (1998).
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