The 9th U.S. Circuit Court of Appeals upheld its previous...

found that actress Cindy Lee Garcia “established a likelihood of success” for the “infringement of her performance within the film because she proved that she likely had an independent interest in the performance and that the filmmaker did not own an interest as a work for hire and exceeded any implied license to use the plaintiff’s performance,” wrote the court, in its February case summary (1.usa.gov/1hV5Dvg) (WID March 3 p16). The court ordered a preliminary injunction against Google in February to remove all copies of the inflammatory Innocence of Muslims film from Google-owned YouTube and to take “reasonable steps” to prevent future uploads, after Garcia began receiving death threats for her minor role in the short film (WID Feb 28 p1). “Google hasn’t raised fair use as a defense in this appeal,” and “so we do not consider it in determining its likelihood of success,” said Chief Judge Alex Kozinski in the 2-1 decision Friday. “This does not, of course, preclude Google from raising the point in the district court, provided it properly preserved the defense in its pleadings,” he said. “The amended opinion does not address our most basic concern: that the court applied the wrong standard altogether,” said Corynne McSherry, EFF intellectual property director, in a blog post (http://bit.ly/1wc0MHA) Friday. “The takedown order was a mandatory preliminary injunction, which should never occur unless the law and the facts clearly favor the person asking for it,” she said.