In April, OTW’s legal team filed an amicus brief in Garcia v. Google. In that brief, we asked the U.S. Ninth Circuit Court of Appeals to re-hear the case, which dealt with the internet “safe harbor” provisions that protect intermediaries (like YouTube and the AO3) from liability for user-created content. A three-judge panel of the court had issued a ruling that ignored these safe harbors and imposed liability on Google for material that its users posted. As we noted then, it was a case of “bad facts make bad law,” since the plaintiff — an actress tricked into taking part in the film Innocence of Muslims — has good reason to want the film taken down. But in creating what might have seemed a just result in that case, the panel disrupted Congress’s intent in passing the safe harbor laws and created potentially chilling risks to free speech.
We succeeded! On November 12, 2014, the court ruled that its previous decision was void, and ordered that the case would be re-heard by the entire court–not just a three-judge panel–in December. The OTW has filed a new amicus brief in the case, expanding on the arguments we made in our original brief. As we explained in our filing, the court should interpret the safe harbors broadly enough to provide safety for content hosts, because that safety is what permits content hosts like the AO3 to exist. If hosts were vulnerable to lawsuits over user-created content, it would allow censorship to flourish and create an environment in which many intermediaries could no longer afford to continue operating. As we argued: “when intermediaries’ immunity is not robust, the vibrant marketplace of ideas they enable is compromised.”
We will keep you informed as the case progresses. Our brief is available in PDF on the Legal Project page, along with all our filings, on the OTW website.