A divided panel of our court reversed. More than a year and a half after the film was first uploaded, the panel majority first issued a secret takedown order, giving Google twenty-four hours to remove all copies of Innocence of Muslims from YouTube and other Google-controlled platforms. The panel embargoed disclosure of the order until it issued its opinion. The panel later amended the order to allow YouTube to post any version of the film that did not include Garcia's performance.
In its later-issued opinion, the panel majority reversed the district court and granted Garcia's preliminary injunction. Garcia v. Google, Inc., 743 F.3d 1258, amended by Garcia v. Google, Inc., 766 F.3d 929 (9th Cir. 2014). Despite characterizing Garcia's copyright claim as "fairly debatable," the panel majority nonetheless concluded that Garcia was likely to prevail on her copyright claim as to her individual performance in Innocence of Muslims. 766 F.3d at 935. In contrast to the district court's factual finding of an implied license from Garcia to Youssef, the panel opinion held that the license ran in the opposite direction: "Youssef implicitly granted [Garcia] a license to perform his screenplay," and that Garcia did not grant Youssef an implied license to incorporate her performance into the film. Id. at 935–38. Finally, the panel majority held that, because of the death threats against her, Garcia had established irreparable harm and the equities and public interest favored an injunction. Id. at 938–40. The opinion did not address the First Amendment consequences of the mandatory takedown injunction, beyond stating that the First Amendment does not protect copyright infringement.
Judge N.R. Smith dissented. He wrote that Garcia had not met the high burden required for a mandatory preliminary
