Religious Bigotry on Parade in the Ninth Circuit

 

One of the worst copyright rulings in history, even by Ninth Circuit standards, has finally been reversed by an en banc decision written mercifully by Judge Margaret McKeown. This was a hot topic on my radio show when it first came down. You all know the story.

The White House’s false narrative about the cause of the Benghazi raid on the American Embassy resulting in the death of Ambassador J. Christopher J. Stevens. Sean Smith, Tyrone Snowden Woods, and Glen Anthony Doherty. Hillary Clinton and the White House of course blamed the disrespect of the prophet Muhammad in the film “Innocence of Muslims” for the action, which of course was a scandal because that was not the cause, and she and the White House knew this.

alex kozinski halloween-costume
Religious Bigotry on Parade with Judge Alex Kozinki (right)

This lie set off a series of bad actions like lies often do. An actress named Cindy Lee Garcia, who was only in the film for a brief time (actually five seconds according to the few who have sat through the entire thing), panicked and filed a law suit against Google to take the film down from YouTube. She claimed she didn’t know how controversial the final product would be. We have no way of knowing if that’s true, by the way.

This was a terrible lawsuit because her goal was to change copyright law to hinder free speech, not enforce copyright which is aimed at protecting free speech. Films are collaborative efforts that qualify for “work for hire” status. The “author” is the producer or studio. No one in the film has a “copyright interest,” only contractual interests. Her case demanded that she be able to determine the content and distribution of the film and merely because she “worked on it.”

This is absurd. Films could not be made if investors had to worry about this kind of thing from each of the hundreds of people that “work on” a typical film. I don’t know have to tell you that. But why didn’t the original Ninth Circuit judge who wrote the over-ruled opinion know that?

When I read the garbage of an opinion my guess was that he was just a lefty looking to score points with his friends that are interested in protecting the world against anti-Muslim propaganda, but don’t care about anti-Christian propaganda. Many of those people exist. It is not surprising that one of them might be on the Ninth Circuit. It took two seconds to Google him and figure this guy out.

He’s the same Judge Alex Kozinski who was “embarrassed” when he “accidentally” uploaded a bunch of pictures like the one that appears above. That’s him in the fur coat, near the man dressed like a priest who is wearing a costume graphically portraying the abuse of a child. (Don’t worry, it’s a fake child.) But nonetheless, this is religious bigotry literally “on parade.” But I guess it’s OK since it’s a Christian religion being denigrated through offensive stereotypes.

In the dissent of the en banc decision he doubled down, writing “In its haste to take Internet service providers off the hook for infringement, the court today robs performers and other creative talent of rights Congress gave them. I won’t be a party to it.”

What a buffoon. Congress is exactly the body that elected not to give performers these types of rights. It’s a political opinion, I get it; but what a waste of taxpayer money used to let Kozinski make a political statement while we wait for the correct decision to come down.

Judge Alex Kozinski should not be on the bench. He should be in my Barn of Shame that I built behind my real barn for just such people.

There are 16 comments.

  1. Hammer, The Member

    Yes, Kozinski is a disgusting human being and a terrible judge. That is not his only ridiculous ruling… But it’s California. I have nothing but respect for conservatives in that state who fight against the utter garbage that just permeates everything, but it takes a lot of energy even just to watch it. That people like Kozinski enjoy popular support makes me think that the country is doomed, but it’s the same feeling I get when Obama wins 2 elections, and it is the same people offering the support.

    • #1
    • May 20, 2015, at 4:49 PM PDT
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  2. kylez Member

    Is your link no longer relevant?

    • #2
    • May 20, 2015, at 5:16 PM PDT
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  3. Percival Thatcher

    Joe Escalante: (Don’t worry, it’s a fake child.)

    (I wasn’t. It’s a fake priest too.)

    • #3
    • May 20, 2015, at 5:59 PM PDT
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  4. billy Inactive

    Well more good news:

    51% of Democrats and 37% of Republicans support making Hate Speech a crime.

    • #4
    • May 20, 2015, at 7:31 PM PDT
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  5. Hammer, The Member

    billy:Well more good news:

    51% of Democrats and 37% of Republicans support making Hate Speech a crime.

    That floors me.

    • #5
    • May 20, 2015, at 8:38 PM PDT
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  6. Brian Wyneken Member

    Joe: I don’t know enough of the issue to take a side here at present, but I do know that at one time (late 80s – early 90s), Judge Kozinski was generally highly regarded among conservative and libertarian lawyers and law students. He was a frequent speaker at Federalist Society events, and I recall being very impressed with his presentations at that time. I only mention this because the Google research you mentioned did not include this older history. On the surface I agree with your assessment of the legal case, but since I am more familiar with the “old” Judge Kozinski I’d be more inclined to examine his reasoning more thoroughly. That’s not critisim of your piece – it’s just a comment on how I would approach it due to my bias.

    • #6
    • May 20, 2015, at 8:41 PM PDT
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  7. James Of England Moderator

    Brian Wyneken:Joe:I don’t know enough of the issue to take a side here at present, but I do know that at one time (late 80s – early 90s), Judge Kozinski was generally highly regarded among conservative and libertarian lawyers and law students. He was a frequent speaker at Federalist Society events, and I recall being very impressed with his presentations at that time. I only mention this because the Google research you mentioned did not include this older history. On the surface I agree with your assessment of the legal case, but since I am more familiar with the “old” Judge Kozinski I’d be more inclined to examine his reasoning more thoroughly. That’s not critisim of your piece – it’s just a comment on how I would approach it due to my bias.

    That was my thought. I notice that Eugene Volokh, a clerk and friend to Kozinski, and a key reason for his popularity on the right, quotes extensively from the opinion reversing Kozinski, with apparent approval, but offers no comment.

    Having Ricochet agree with the most prominent liberal in the 9th Circuit over the most senior Libertarian judge in the US is a little odd, but fortunately Posner helps prepare us for libertarian judges sometimes being more wrong than leftists. ;-)

    • #7
    • May 21, 2015, at 12:42 AM PDT
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  8. ctlaw Coolidge

    Joe Escalante: Films are collaborative efforts that qualify for “work for hire” status. The “author” is the producer or studio. No one in the film has a “copyright interest,” only contractual interests.

    Not inherently. Absent employer-employee status, a requirement for “work for hire” status is that “the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

    Did you find this to be an employer-employee relationship?

    Kozinski apparently didn’t and held that fraud nullified the written instrument. Do you disagree with this as a matter of contract law?

    If you don’t disagree, and it’s not a work for hire, what do you disagree with?

    Note, I have not read the case.

    • #8
    • May 21, 2015, at 4:11 AM PDT
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  9. ctlaw Coolidge

    Please explain the “Religious Bigotry…” headline.

    • #9
    • May 21, 2015, at 4:34 AM PDT
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  10. Hammer, The Member

    James Of England:

    Brian Wyneken:Joe:I don’t know enough of the issue to take a side here at present, but I do know that at one time (late 80s – early 90s), Judge Kozinski was generally highly regarded among conservative and libertarian lawyers and law students. He was a frequent speaker at Federalist Society events, and I recall being very impressed with his presentations at that time. I only mention this because the Google research you mentioned did not include this older history. On the surface I agree with your assessment of the legal case, but since I am more familiar with the “old” Judge Kozinski I’d be more inclined to examine his reasoning more thoroughly. That’s not critisim of your piece – it’s just a comment on how I would approach it due to my bias.

    That was my thought. I notice that Eugene Volokh, a clerk and friend to Kozinski, and a key reason for his popularity on the right, quotes extensively from the opinion reversing Kozinski, with apparent approval, but offers no comment.

    Having Ricochet agree with the most prominent liberal in the 9th Circuit over the most senior Libertarian judge in the US is a little odd, but fortunately Posner helps prepare us for libertarian judges sometimes being more wrong than leftists. ;-)

    hah – as for Kozinski, I may be thinking of the wrong judge when I say he is a disgusting human being. mea culpa, as the lawyers say. But I agree that the ruling and the picture are both off-putting.

    • #10
    • May 21, 2015, at 10:13 AM PDT
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  11. Joe Escalante Contributor
    Joe Escalante Post author

    Brian Wyneken:Joe:I don’t know enough of the issue to take a side here at present, but I do know that at one time (late 80s – early 90s), Judge Kozinski was generally highly regarded among conservative and libertarian lawyers and law students. He was a frequent speaker at Federalist Society events, and I recall being very impressed with his presentations at that time. I only mention this because the Google research you mentioned did not include this older history. On the surface I agree with your assessment of the legal case, but since I am more familiar with the “old” Judge Kozinski I’d be more inclined to examine his reasoning more thoroughly. That’s not critisim of your piece – it’s just a comment on how I would approach it due to my bias.

    Thanks Brian. That’s good to know. He’s went off the rails on this one, which is forgivable. But then he doubled down. I’m done with him.

    • #11
    • May 22, 2015, at 10:54 AM PDT
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  12. Joe Escalante Contributor
    Joe Escalante Post author

    ctlaw:Please explain the “Religious Bigotry…” headline.

    Well, one way to practice religious bigotry is when you denigrate a religion through the use of stereotypes. The picture offends me and my religion. It displays bigotry. I don’t like bigotry. That’s just the way I am.

    • #12
    • May 22, 2015, at 10:56 AM PDT
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  13. Joe Escalante Contributor
    Joe Escalante Post author

    ctlaw:

    Joe Escalante: Films are collaborative efforts that qualify for “work for hire” status. The “author” is the producer or studio. No one in the film has a “copyright interest,” only contractual interests.

    Not inherently. Absent employer-employee status, a requirement for “work for hire” status is that “the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

    Did you find this to be an employer-employee relationship?

    Kozinski apparently didn’t and held that fraud nullified the written instrument. Do you disagree with this as a matter of contract law?

    If you don’t disagree, and it’s not a work for hire, what do you disagree with?

    Note, I have not read the case.

    I haven’t seen her agreement, but films qualify as work for hire agreements if it is expressly put in writing. So it’s either a work for hire, or a contractual language mistake. This case was not decided on a technicality. The judge believes that each contributor to a film owns a copyright interest in the film. I, and the en banc panel, disagree with him.

    • #13
    • May 22, 2015, at 10:59 AM PDT
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  14. Joe Escalante Contributor
    Joe Escalante Post author

    kylez:Is your link no longer relevant?

    http://www.hollywoodreporter.com/thr-esq/controversial-innocence-muslims-ruling-reversed-796530

    • #14
    • May 22, 2015, at 11:02 AM PDT
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  15. ctlaw Coolidge

    Joe Escalante:

    ctlaw:Please explain the “Religious Bigotry…” headline.

    Well, one way to practice religious bigotry is when you denigrate a religion through the use of stereotypes. The picture offends me and my religion. It displays bigotry. I don’t like bigotry. That’s just the way I am.

    Just so we are on the same page:

    1) your headline has nothing to do with the court case at hand; and

    2) it was intended more as an ad hominem attack on Judge Kozinski.

    • #15
    • May 22, 2015, at 11:23 AM PDT
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  16. ctlaw Coolidge

    Joe Escalante:

    ctlaw:

    Joe Escalante: Films are collaborative efforts that qualify for “work for hire” status. The “author” is the producer or studio. No one in the film has a “copyright interest,” only contractual interests.

    Not inherently. Absent employer-employee status, a requirement for “work for hire” status is that “the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

    Did you find this to be an employer-employee relationship?

    Kozinski apparently didn’t and held that fraud nullified the written instrument. Do you disagree with this as a matter of contract law?

    If you don’t disagree, and it’s not a work for hire, what do you disagree with?

    Note, I have not read the case.

    I haven’t seen her agreement, but films qualify as work for hire agreements if it is expressly put in writing. So it’s either a work for hire, or a contractual language mistake. This case was not decided on a technicality. The judge believes that each contributor to a film owns a copyright interest in the film. I, and the en banc panel, disagree with him.

    You err.

    First: “So it’s either a work for hire, or a contractual language mistake.” Kozinski apparently asserts that fraud invalidated any contract that would otherwise have made it a work for hire. That does not seem unreasonable.

    Second: “The judge believes that each contributor to a film owns a copyright interest in the film. I, and the en banc panel, disagree with him.” This is a compound statement that is false.

    The majority opinion seemed to brush on but not necessarily address several issues: 1) whether the individual performance is subject to copyright; 2) who owns it; 3) whether there is infringement; and 4) whether there should be an injunction.

    The majority appeared to concentrate on 1 and 4. The work for hire question would be part of 2 and the majority did not address.

    Your compound statement should be analyzed as:

    1) the judge believes a performance such as Garcia’s rises to the level of copyright protection;

    2) the judge believes the producer would normally own that copyright under work for hire doctrine;

    3) when work for hire doctrine does not apply (no or a fraudulently induced work for hire contract), the judge believes the performer owns that copyright;

    4) the majority apparently holds that the individual performance does not rise to the level of copyright protection;, thus, it never had to address work for hire (see note 5 of the opinion which read: “…Nor do we consider whether Garcia’s performance was a work made for hire…);

    5) by implication, even with a valid work for hire contract, the majority believes the producer does not own copyright to that performance;

    6) Kozinski is much more pro-copyright than the majority (his dissent highlights the Hollywood vs. Google tension);

    7) your initial focus on work for hire was misdirected .

    • #16
    • May 22, 2015, at 11:51 AM PDT
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