Just two days after the parties submitted briefing (including the revelation that Cindy Lee Garcia’s registration request had been rejected by the U.S. Copyright Office) on a Ninth Circuit judge’s sua sponte request for a vote on whether to rehear the denial of a stay of the Court’s February 26, 2014 decision finding a likelihood that Garcia had a copyrightable performance in “Innocence of Muslims,” the Court has voted not to reconsider that denial, and the ruling stands in force for now. This decision only affects Google’s request not to be required to take down all copies of the video from YouTube while the appeal is pending, a take down that it will now have to continue or be completed. The decision offers no rationale, other than that a majority of the court voted not to stay the matter.
It is hard to read too much into this decision. On the one hand, since the error of copyright law in the initial opinion seems so clear, perhaps this is a signal that Google may not, in fact, find a receptive audience with the full court to its substantive petitition (which it also filed on March 12, 2014). UPDATE: PACER was inaccessible yesterday, but Google’s full petition for rehearing is now available here. It addresses forcefully the many flaws in the February 26, 2014 opinion. Since likelihood of success is a critical element of the injunction on appeal, one could infer that the Court is skeptical enough of Google’s argument that it let the opinion stand for now. On the other hand, one could easily imagine the panel of the Court focusing more on Garcia’s relative harm argument, and her explanation of the threats she received–such that they were satisfied to let the First Amendment take a back seat to more immediate concerns about safety pending consideration of the fuller panel.
Garcia now has twenty one days to file her response, and amicus curiae (friend of the court) briefs have been authorized prospectively by the Court. Expect more than a few.