COPYRIGHT - First Amendment and Restraining Google with Internet Gag Order

The majority suggested that—based on her five-second appearance in a
film—Garcia “may have a copyright.” Op. 10. From that equivocal premise, the panel held that she was likely to succeed, even though it conceded that the question whether an actor in a film ever acquires a copyright is “fairly debatable” and “rarely litigated.” Op. 7-10. The majority also held that, absent an injunction, Garcia likely will suffer irreparable harm. Op. 15-17. In response to YouTube’s assertion that the film is already so widespread that removing it from YouTube will not prevent Garcia’s harm, the majority concluded that it was good enough if the relief could “curb the harms” at issue. Op. 17.

How appealing blogs the en banc request here.

UPDATE:

2. Google made no fair use argument in its Ninth Circuit brief, and the panel didn’t discuss fair use. I think that it’s quite possible that, under the fair use factors, the posting of a movie might be fair use on the part of the poster and of Google.

Volokh.