no one's surprise, the end result was the same: the entire film remained removed from YouTube.
The takedown order was unwarranted and incorrect as a matter of law, as we have explained above. It also gave short shrift to the First Amendment values at stake. The mandatory injunction censored and suppressed a politically significant film—based upon a dubious and unprecedented theory of copyright. In so doing, the panel deprived the public of the ability to view firsthand, and judge for themselves, a film at the center of an international uproar.
Although the intersection between copyright and the First Amendment is much-debated,[1] the Supreme Court teaches that copyright is not "categorically immune from challenges under the First Amendment." Eldred, 537 U.S. at 221 (internal citation omitted). To be sure, this is not a case of garden-variety copyright infringement, such as seeking to restrain the use of copyrighted computer code. The panel's takedown order of a film of substantial interest to the public is a classic prior restraint of speech. Alexander v. United States, 509 U.S. 544, 550 (1993) ("Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints."). Prior restraints pose the "most serious and the least tolerable infringement on First Amendment rights," Hunt v. NBC, 872 F.2d 289, 293 (9th Cir. 1989) (citation omitted), and Garcia cannot overcome the historical and
- ↑ See, e.g., Joseph P. Bauer, Copyright and the First Amendment: Comrades, Combatants, or Uneasy Allies?, 67 Wash. & Lee L. Rev. 831 (2010); Mark A. Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L.J. 147 (1998).
