Block on Trump's Asylum Ban Upheld by Supreme Court
We've got a twin pack of updates for you on this midsummer Monday afternoon, both involving preliminary injunctions, video content, and non-traditional distribution mediums.
In one case, which pits a major television network against an alternative video distribution medium (it's almost Aereo part II), the panel declined to issue a preliminary injunction. In the other, we have a bit of backtracking (but not enough) by the panel in an amended opinion in a dangerous precedential case that imposed prior restraint on speech on the basis of a questionable copyright claim.
Dish has a multitude of devices that go beyond the traditional cable or satellite television box, including two at issue here: Dish Anywhere, which allows users to view their DVR recordings using an Internet-connected device and Hopper Transfers, which allow users to transfer recordings to offline devices, like an iPad. Fox is arguing that the company's use of its content goes beyond the parties' distribution agreement and compares the situation to the television networks' recent victory over Aereo.
However, today was not about the merits -- it was an issue of irreparable harm while the proceedings play out. The district court and the Ninth Circuit agreed that Fox's proffered proof of irreparable injury should Dish be allowed to continue with its unique services was merely speculatory. (In fact, the district court noted that Fox was unable to present evidence of harm, despite the technology at issue being available for several years.)
When the merits stage does arrive, it should be interesting to see if the courts distinguish Aereo's technology, which paid no rebroadcasting fees to the networks but allowed users to retransmit over-the-air signals via the Internet, from cloud-based DVR services like Dish Anywhere.
One of the more criticized lower court decisions in recent memory, Garcia v. Google, held that an actress likely has a copyright interest in her role in a film and that Google should be forced to pull the video off of YouTube in the interim, was revisited by the panel in an amended opinion.
What was the outcome? After the initial opinion granted a preliminary injunction, a dangerous prior restraint on speech, all on the basis of a very questionable copyright claim, the amended opinion does the same, while highlighting the numerous ways in which the district court can still rule in favor of Google. For example, Chief Judge Alex Kozinski's amended majority opinion notes that the district court could rule against the actress's copyright claim (the Copyright Office recently did), or could evaluate free speech, fair use, and Communications Decency Act (Section 230) claims.
In other words, her copyright claim is crap, and the takedown order is probably illegal and unconstitutional. And yet, the injunction stands -- for now. (The petition for en banc rehearing is still pending, and the district court could still rule in Google's favor.)
The amended dissent wasn't too happy with Kozinski last time, and is even less happy now:
The majority's amended opinion also attempts to hedge its conclusion that Garcia has a copyright interest in her acting performance by avoiding counter arguments it failed to address, because they were not raised by the parties. [citation]. Yet, the majority could consider these arguments sua sponte "under exceptional circumstances, where substantial public interests are involved, or where to not do so would be unduly harsh to one or both of the parties." [...] The majority's failure to even engage this inquiry, instead quickly dismissing arguments against its view, confirms its error.
We're with the dissent here: a prior restraint on free speech is amongst the most odious of actions a court can take. To uphold such an order, supposedly because the parties didn't raise obvious issues, on the basis of a nearly certain to fail copyright claim, is beyond ridiculous.
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