After last week’s ruling (wrongly decided, in our view) that an actress in “Innocence of Muslims” is likely to prevail on her claim that she had an independently copyrightable performance distinct from the movie itself, anticipation has been high about what might happen next. Google (seeking not to take the video off YouTube) petititoned the original panel unsuccessfully for an emergency stay of the ruling pending petiton for rehearing or to the full panel of Ninth Circuit judges. That stay request was swiftly denied, except that Google was permitted to leave up clips that did not include Cindy Garcia’s performance.
Yesterday, Judge Sydney Thomas of the Ninth Circuit filed an order noting that a judge (whether or not it was him is not clear) had requested a vote en banc on the denial of the stay. The order reads “A judge of this Court has made a sua sponte request for a vote on whether to rehear en banc the panel’s order of February 28, 2014 denying a stay of the panel’s prior orders, as amended, directing Google and YouTube to remove immediately all or part of a film entitled “Innocence of Muslims” from its platforms worldwide and to prevent further uploads.” Any federal Court of Appeals is made up of anywhere from several to dozens of judges, who can be petitioned in the event of an adverse decision by the initial three-judge panel. Google was expected to ask for a rehearing or hearing en banc both of the denial of stay and the decision itself, so this hastens the process somewhat. Judge Thomas instructed the parties to submit briefs by March 12, 2014 only as to whether the panel’s denial of the emergency stay should be overturned.
It would be a reach to read too much into this move, but clearly the case has gotten the Court’s attention.