Case: 12-5730204/14/2014ID: 9056994DktEntry: 86Page: 1 of 18NOS. 12-57302IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUITCINDY LEE GARCIA,PLAINTIFF-APPELLANT,V.GOGGLE, INC., YOUTUBE LLC, et al.,DEFENDANTS-APPELLEES,ANDNAKOULA BASSELEY NAKOULA, an individual, a.k.a. Sam Bacile, et al.,DEFENDANTS.On Appeal From The United States District Courtfor the Central District of CaliforniaD.C. No. 2:12-cv-08315-MWF-VBKThe Honorable Michael W. Fitzgerald, District Court JudgeBRIEF OF AMICI CURIAE FLOOR64 INC. AND ORGANIZATION FORTRANSFORMATIVE WORKS IN SUPPORT OF GOOGLE, INC. ANDYOUTUBE, LLC’S PETITION FOR REHEARING EN BANCCatherine R. Gellis, Esq.150 Harbor Dr. #2477Sausalito, CA 94965Telephone: 202-642-2849Email: cathy@cgcounsel.comCounsel for Amici CuriaeCase: 12-5730204/14/2014ID: 9056994DktEntry: 86Page: 2 of 18DISCLOSURE OF CORPORATE AFFILIATIONS ANDOTHER ENTITIES WITH A DIRECT FINANCIAL INTEREST INLITIGATIONPursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, bothamicus curiae Floor64 Inc. and amicus curiae Organization for TransformativeWorks state that they do not have a parent corporation, and that no publicly heldcorporation owns 10% or more of the stock of either amicus.iCase: 12-5730204/14/2014ID: 9056994DktEntry: 86Page: 3 of 18TABLE OF CONTENTSSTATEMENT OF INTEREST ....................................................................................................... 1INTRODUCTION .......................................................................................................................... 2ARGUMENT .................................................................................................................................. 3I.CONGRESS FORECLOSED THE PANEL'S ORDER. .................................................... 3A.SECTION 230 PRECLUDED THE INJUNCTION........................................................... 3B.THE DMCA ALSO PRECLUDED THIS INJUNCTION. ................................................ 5II.ENJOINING GOOGLE FRUSTRATES CONGRESS'S INTENT TO PROMOTEONLINE FREE SPEECH BY PROTECTING INTERMEDIARIES. ............................... 8A.WHEN INTERMEDIARIES HAVE TO FEAR LIABILITY FOR USER-GENERATEDCONTENT, IT HARMS PUBLIC DISCOURSE. ............................................................. 8B.THE INJUNCTION AGAINST GOOGLE SIGNALS THAT INTERMEDIARIES NOWNEED TO FEAR LIABILITY FOR HOSTING USER-GENERATED CONTENT. ..... 11CONCLUSION ............................................................................................................................. 12iiCase: 12-5730204/14/2014ID: 9056994DktEntry: 86Page: 4 of 18TABLE OF AUTHORITIESCasesBlockowicz v. Williams, 630 F. 3d 563 (7th Cir. 2010) .............................................4Fair Housing Council of San Fernando Valley v. Roommate.com, 521 F. 3d 1157(9th Cir. 2008) ........................................................................................................5Perfect 10, Inc. v. CCBill LLC, 488 F. 3d 1102 (9th Cir. 2007) ...........................7, 9Scott v. WorldStarHipHop, Inc., 102 U.S.P.Q.2d 1725 (S.D.N.Y. 2012) .................9UMG Recordings, Inc. v. Shelter Capital Partners, 718 F. 3d 1006 (9th Cir. 2013)7Statutes17 U.S.C. § 107 ..........................................................................................................817 U.S.C. § 512 ......................................................................................................2, 617 U.S.C. § 512(c) .....................................................................................................617 U.S.C. § 512(c)(1) .................................................................................................617 U.S.C. § 512(c)(3)(A)(v) ......................................................................................717 U.S.C. § 512(j)(1)(A)(i) ........................................................................................617 U.S.C. § 512(j)(1)(A)(ii) .......................................................................................617 U.S.C. § 512(j)(1)(A)(iii) ......................................................................................717 U.S.C. § 512(m)(1) ...............................................................................................747 U.S.C. § 230 ..........................................................................................................247 U.S.C. § 230(a)(1) .................................................................................................347 U.S.C. § 230(a)(3) .................................................................................................347 U.S.C. § 230(c)(1) .............................................................................................3, 447 U.S.C. § 230(c)(2) .................................................................................................547 U.S.C. § 230(e)(2) ........................................................................................ 4, 6, 8Other AuthoritiesS.Rep. No. 105-190 (1998) ........................................................................................6iiiCase: 12-5730204/14/2014ID: 9056994DktEntry: 86Page: 5 of 18STATEMENT OF INTERESTAmicus Floor64 Inc. is a corporation that regularly advises and educatesinnovative technology startups on a variety of issues, including intermediaryliability and the important free speech aspects of safe harbors. Floor64's onlinepublication, Techdirt.com, includes over 50,000 discussions on similar topics,totaling more than one million third party comments, and regularly receives over 3million monthly impressions. The site depends on the statutory protection forintermediaries to enable the robust public discourse found on its pages.Amicus Organization for Transformative Works (“OTW”) is a 501(c)(3)nonprofit organization dedicated to protecting and preserving noncommercialfanworks: works created by fans based on existing works, including populartelevision shows, books, and movies.OTW’s nonprofit website hostingtransformative noncommercial works, the Archive of Our Own (“AO3”), has over300,000 registered users and receives almost 50 million page views per week. TheOTW submits this brief to make the Court aware of the impact of its decision uponnonprofit intermediaries that facilitate transformative speech.Pursuant to Federal Rule of Appellate Procedure 29(c)(5), no one, except forundersigned counsel, has authored the brief in whole or in part, or contributedmoney towards the preparation of this brief.This brief is filed pursuant to this Court’s Order, Docket No. 61.1Case: 12-5730204/14/2014ID: 9056994DktEntry: 86Page: 6 of 18INTRODUCTIONThere is no dispute that Plaintiff Garcia has been victimized by DefendantNakoula, first by being fraudulently coerced into enabling his inflammatorycinematic project without her awareness or consent, and then by wrongfully beingheld accountable by people who construe religious insult as a justification forviolence. Garcia appealed to the courts to remediate her injury, including byforcing Google to remove from the world all evidence of it.But courts can only provide remedies the law allows, and here the lawexplicitly restricted those that could be imposed on intermediaries like Google.Congress deliberately insulated them from both monetary and equitable remedieswith respect to content others put on their systems when it enacted 47 U.S.C. § 230("Section 230") and the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C.§ 512, as part of a conscious effort to protect and advance online public discourse.By nonetheless providing Garcia the remedy she sought, just though it may haveseemed under these circumstances, the Panel undermined Congress's goal offostering online speech by effectively stripping intermediaries of the statutoryprotection they depend on to deliver it.The order requiring Google to "take down all copies" and "take allreasonable steps to prevent further uploads" of the offending content should thusbe reviewed in light of Congress's express prohibition against such a command.2Case: 12-5730204/14/2014ID: 9056994DktEntry: 86Page: 7 of 18ARGUMENTI.Congress foreclosed the Panel's order.A. Section 230 precluded the injunction.The Internet would be nothing without its intermediaries. Intermediaries arewhat carry, store, and serve every speck of information that makes up the Internet.From the banal to the erudite, every single thing the world relies on the Internet toprovide exists only because some site, server, or system has intermediated thatcontent so the world can have access to it.Congress understood this value, finding that "[t]he rapidly developing arrayof Internet and other interactive computer services available to individualAmericans represent an extraordinary advance in the availability of educationaland informational resources to our citizens," § 230(a)(1), and that "[t]he Internetand other interactive computer services offer a forum for a true diversity ofpolitical discourse, unique opportunities for cultural development, and myriadavenues for intellectual activity." § 230(a)(3). To ensure that intermediaries couldcontinue to provide this benefit Congress enacted Section 230, which stands for theproposition that intermediaries are only responsible for what they themselvescommunicate through their systems – not what others use them for. § 230(c)(1).3Case: 12-5730204/14/2014ID: 9056994DktEntry: 86Page: 8 of 18Section 230 is therefore unequivocal in the immunity it providesintermediaries,1 decreeing that, "No provider or user of an interactive computerservice shall be treated as the publisher or speaker of any information provided byanother information content provider."§ 230(c)(1).This immunity not onlyrelieves intermediaries for monetary damages claims arising from the contentappearing on their systems, but it also prevents them from being compelled tomodify or delete that content (provided it had been supplied by others, as is thecase here). Blockowicz v. Williams, 630 F. 3d 563, 568 (7th Cir. 2010) (findingFederal Rule of Civil Procedure 65 precludes "an injunction so broad as to makepunishable the conduct of persons who act independently and whose rights havenot been adjudged according to law.").While Section 230's bright-line rule may sometimes mean that unsavorycontent can linger online when the intermediary opts not to delete it, wereintermediaries subject to a compulsion to delete then more legitimate contentwould invariably end up being prospectively deleted.Congress deliberatelystructured Section 230 to allow intermediaries to exercise discretion over thecontent others posted to them by not requiring them to delete any of it.1While Section 230's immunity is unequivocal there are a few exceptions to itsapplicability, including for claims involving intellectual property. § 230(e)(2).However, even if Garcia's copyright claim were valid, the principles underlyingSection 230 remain central to the present dispute. See discussion infra I.B, II.A.4Case: 12-5730204/14/2014ID: 9056994DktEntry: 86Page: 9 of 18§ 230(c)(2); see also Fair Housing Council of San Fernando Valley v.Roommate.com, 521 F. 3d 1157, 1163-64 (9th Cir. 2008).Even in cases like this one where the content in question is noxious Section230 provides for no exception from its coverage, nor can the defects of the contentprovide any justification for denying intermediaries the discretion Section 230immunity affords them.On the contrary, for Section 230 to provide anymeaningful protection intermediaries have to be able to rely on it holding in thehard cases as much as the easy ones. Exceptions to this immunity cannot be bornewithout eviscerating it entirely. See id. at 1174. To do otherwise would be asfoolhardy as shooting the messenger who has carried a message someone else sentbased solely on the content of that message, and, worse, as in this case, simplybecause of the boorish behavior of society's lesser angels in response to it. If toomany intermediaries find themselves facing such dire consequences for deliveringothers' content, soon none will be left willing to deliver any more.Yet that is what this Panel has done in enjoining Google, and for this reasonits order should be reviewed.B. The DMCA also precluded this injunction.Even if Garcia did have a valid copyright in the film, the remedy ordered bythe Panel to "take down all copies" and "take all reasonable steps to prevent furtheruploads" goes beyond what Congress permitted be compelled of Google.5Case: 12-5730204/14/2014ID: 9056994DktEntry: 86Page: 10 of 18Although Congress did exempt intellectual property claims from Section230, § 230(e)(2), it did not want intermediaries to necessarily be liable for thecopyright infringement that might be manifest in the content it hosted at thedirection of others. S.Rep. No. 105-190, at 8 (1998). As with Section 230,Congress understood that if it wanted to intermediaries to remain available tofacilitate users' expression it needed to craft a law that aligned everyone's interestsby ensuring intermediaries had sufficient protection from litigation and liabilitywith respect to that expression. Id. at 20.To meet this policy objective Congress amended the copyright statute withthe DMCA. 17 U.S.C. § 512. Part of the protection it offers to intermediaries, inaddition to relief from monetary damages, is a limit on injunctive exposure.§ 512(c)(1) ("A service provider shall not be liable for monetary relief, or, exceptas provided in subsection (j), for injunctive or other equitable relief…"). Becausethis Panel made no finding that Google was unable to avail itself of the safe harborrequirements articulated at § 512(c),2 the injunctions it could issue were limited to(1) disabling access “to infringing material or activity residing at a particularonline site on the provider's system or network,” § 512(j)(1)(A)(i), (2) terminatingspecifically-identified users, § 512(j)(1)(A)(ii), or (3) “[s]uch other injunctive reliefas the court may consider necessary to prevent or restrain infringement of2To the extent the propriety of the order hinges on this issue, rehearing should begranted so that it may be properly litigated.6Case: 12-5730204/14/2014ID: 9056994DktEntry: 86Page: 11 of 18copyrighted material specified in the order of the court at a particular onlinelocation…” § 512(j)(1)(A)(iii) (emphasis added). All of these limitations thereforepreclude the broad injunction issued by the Panel to "take down all copies"everywhere.Furthermore, the DMCA explicitly relieves intermediaries from having topolice for infringing content. § 512(m)(1); see also Perfect 10, Inc. v. CCBill LLC,488 F. 3d 1102, 1114 (9th Cir. 2007). Thus the order to "take all reasonable stepsto prevent further uploads" imposes a duty on Google that goes far beyond whatCongress contemplated being appropriate and at the expense of the same freespeech concerns that Congress worried about in the Section 230 context. Underthe DMCA an intermediary only needs to take down specific copies of content thatwere not "authorized by the copyright owner, its agent, or the law."§ 512(c)(3)(A)(v); see also UMG Recordings, Inc. v. Shelter Capital Partners, 718F. 3d 1006, 1021-22 (9th Cir. 2013).But copyright analysis is inherentlycontextual; the question is never as simple as whether a copy has been made, butwhether the specific copy has been made without entitlement, something theintermediary is least equipped to know. Id. Some copies may, for example, havebeen posted by other individuals under the principles of fair use, a particularlysalient concern here given the immense public discussion this controversy hasspawned. See id. In nevertheless ordering Google to prevent the existence of each7Case: 12-5730204/14/2014ID: 9056994DktEntry: 86Page: 12 of 18and every possible copy, whether infringing or not, the Panel has ignored thestatutory limitations imposed by the DMCA and 17 U.S.C. § 107, in contraventionof the First Amendment principles enshrined in the latter and general desire ofCongress to encourage online discourse by protecting intermediaries through theformer. These concerns are significant enough to warrant further judicial review.II.Enjoining Google frustrates Congress's intent to promote online freespeech by protecting intermediaries.A. When intermediaries have to fear liability for user-generatedcontent, it harms public discourse.It is not idle speculation to believe that if intermediaries' immunity were notcomplete the vibrant marketplace of ideas they enable would be compromised.There is one key way their immunity has already been compromised, with readilyvisible resulting harm.Because Section 230 puts user-generated content beyond the reach of courtorders for deletion, plaintiffs often try to bypass its reach by recasting their statelaw claims, for which intermediaries would be immune from requirements to takeit down, as intellectual property claims, for which intermediaries are not.§ 230(e)(2). This Circuit has already reasonably found that this exception refersonly to federal intellectual property and not any of the state-created quasiintellectual property claims Garcia may legitimately have against Nakoula arisingfrom his film and for which, pursuant to Section 230's language and legislative8Case: 12-5730204/14/2014ID: 9056994DktEntry: 86Page: 13 of 18goals, Google is immune from any judicial action associated with hosting it.CCBill, 488 F. 3d at 1118-19 ("[P]ermitting … any particular state's definition ofintellectual property to dictate the contours of this federal immunity would becontrary to Congress's expressed goal of insulating the development of the Internetfrom the various state-law regimes.").But because this exemption clearly applies to federal copyright claims it hasbecome very easy for people to censor content they don't like by simply by framingtheir displeasure as a copyright claim, however speciously, because doing sotargets the intermediary's un-immune Achilles heel.See, e.g., Scott v.WorldStarHipHop, Inc., 102 U.S.P.Q.2d 1725 (S.D.N.Y. 2012). The rationallyrisk-adverse intermediary will thus be inclined to over-censor potentially importantpublic discourse in order to avail themselves of the lesser, conditional protection ofthe DMCA and avoid the specter of being held liable for content someone elseprovided.3While in deleting the content intermediaries may be protecting themselves,their doing so sacrifices the important public interest Congress sought to protectwhen it codified Section 230. Congress recognized the public also has an interestin having access to online speech and the subsequent discourse it spawns, but when3This concern is exacerbated by this ruling, which removes any incentive forintermediaries to weed out specious claims, as doing so will only risk exposingthemselves to expensive litigation.9Case: 12-5730204/14/2014ID: 9056994DktEntry: 86Page: 14 of 18a copyright claim can be used as a virtual delete button the public loses out on thatbenefit. It is thus crucially important that courts not aid and abet these attempts atcensorship, even in cases with egregious content like this one.In fact, rather than justifying Garcia's attempt to evade Section 230'sintermediary protection the facts of this case actually serve to validate itsapplicability. As this Court itself noted in creating the special docket page for thiscase there is an above average level of interest in it. Nearly every aspect is amatter of public concern, from the abuse by Nakoula, to the abuse wrought byGarcia's attackers, to the effect this case may have on future speakers,intermediaries, and speech itself. Striking from the public record all evidence ofthe film (to the extent the injunction against Google would actually achieve thisend) won't make it cease to exist or the matter any less important. This bell cannotbe un-rung, and attempting to do so by putting the squeeze on the intermediaryserves only to chill public discussion, not only with regard to this matter but anyfuture matters involving determined plaintiffs tempted to mask their state lawclaims under the guise of copyright. Indeed, a ruling allowing even worthy victimslike Garcia to force intermediaries to destroy all record of their victimizationactually gives future wrongdoers the tools to suppress evidence and commentaryabout their wrongdoing thus enabling further victimization. In light of these harms,this order should be reviewed.10Case: 12-5730204/14/2014ID: 9056994DktEntry: 86Page: 15 of 18B. The injunction against Google signals that intermediaries now needto fear liability for hosting user-generated content.Granting Garcia the injunction against Google changed the rules governingintermediaries. In ordering a remedy beyond the bounds Congress authorized thePanel has left intermediaries as vulnerable as they would have been had there beenno Section 230 or DMCA at all. Although it was an injunction and not a monetaryremedy, if the laws preventing the former can be circumvented today then they canbe circumvented to allow the latter tomorrow.Such a ruling frustrates Congress's express intention to protectintermediaries by rendering this protection illusory. Protecting intermediaries inexchange for the speech they enabled was a bargain Congress consciously struck inorder to prevent them from being tempted to over-censor or even outright bansubstantial amounts of legitimate, valuable content, no matter how valuable orlegitimate that content might actually be. This is a policy whose wisdom has beenborn out: by relieving intermediaries of liability connected with content that passesthrough their systems intermediaries have been able to develop into increasinglyrich resources that might not have been able to take root had they felt it necessaryto police every byte that passed through them out of the fear that if they didn't, andthe wrong bit got through, crippling legal sanction could be just around the corner.While Google may have had the finances and fortitude to fully fight Garcia'slegal demands, many smaller, start-up, or non-profit intermediaries do not. Having11Case: 12-5730204/14/2014ID: 9056994DktEntry: 86Page: 16 of 18to defend themselves against the reach of the courts for issues arising from any ofthe myriad user-generated content they host can be devastating, but in openinggaps in the safe harbors of Section 230 and the DMCA the Panel has opened upintermediaries to that likelihood. The Panel's order necessarily challenges theircurrent and future ability to facilitate the rich and diverse discourse they'veheretofore been able to facilitate and must thus be reviewed in light of how itbreaches Congress's purposeful promise to shield them.CONCLUSIONBecausethisorderdisregardsthestatutoryprotectionsaffordedintermediaries by Section 230 and the DMCA and therefore exposes them all toheightened risk born from uncertainty, in conflict with Congress's clear intent toprovide them with generous legal protection to preserve the social value of onlinefree speech, this case should be reheard so the court can reconsider whether itsorder is consistent with Congress's legislative instructions.Dated: April 14, 2014By: /s/ Catherine R. GellisCatherine R. Gellis, Esq.150 Harbor Dr. #2477Sausalito, CA 94965Telephone: 202-642-2849Email: cathy@cgcounsel.comCounsel for Amici CuriaeFloor 64 Inc. and Organization forTransformative Works12Case: 12-5730204/14/2014ID: 9056994DktEntry: 86Page: 17 of 18CERTIFICATE OF COMPLIANCEWITH TYPE-VOLUME LIMITATION,TYPEFACE REQUIREMENTS AND TYPE STYLE REQUIREMENTSPURSUANT TO FED. R. APP. P. 32(a)(7)(C)Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify as follows:1.This Brief of Amici Curiae Floor64 Inc. and Organization forTransformative Works In Support Of Google, Inc. and YouTube, LLC's Petitionfor Rehearing En Banc complies with the word limit of this Court's March 13,2014 order because this brief contains 2500 words, excluding the parts of the briefexempted by Fed. R. App. P. 32(a)(7)(B)(iii); and2.This brief complies with the typeface requirements of Fed. R. App.P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because thisbrief has been prepared in a proportionally spaced typeface using MicrosoftWord 2010, the word processing system used to prepare the brief, in 14 point fontin Times New Roman font.Dated: April 14, 2014By: /s/ Catherine R. Gellis__Catherine R. GellisCounsel for Amici CuriaeFloor64 Inc and Organization forTransformative Works___________13Case: 12-5730204/14/2014ID: 9056994DktEntry: 86Page: 18 of 18CERTIFICATE OF SERVICEI hereby certify that I electronically filed the foregoing with the Clerk of theCourt for the United States Court of Appeals for the Ninth Circuit by using theappellate CM/ECF system on April 14, 2014.I certify that all participants in the case are registered CM/ECF users andthat service will be accomplished by the appellate CM/ECF system.Dated: April 14, 2014By: /s/ Catherine R. GellisCatherine R. GellisCounsel for Amici CuriaeFloor64 Inc. and Organization forTransformative Works14