“|…analytical deficiencies of the now-vacated Garcia v. Google opinion ….[snip…. ] isn’t surprising given that an appellate court was making up the facts out of thin air”|

The NOT yet vacated Garcia v Google opinion is is still in effect and keeping the illegal video off YouTube and not, therefore, continually intercepting and disclosing Ms Garcia’s original free speech. A vacated opinion has no force. America’s copy[rite] regime has been unconstitutional since May 31, 1790 by denying and disparaging the fundamental human right to control original speech/artwork “for a time” existing in England for one-quarter century in 1790.
The coming ruling was left no chance for preserving justice except to overrule Wheaton v Peters (1834). This mistake has been obvious since 1834 for everyone in England.

Cris Armenta Esq. did not argue this obvious fact but is now aware of two legal vehicles to protect Ms Garcia:

1) Encouraging SCOTUS to recognize the common law right as well as the
natural human right to protect honor from abuse due to unauthorized fixations of original speech. The Ninth Circuit Court of Appeal may take this up sua sponte in order to finally recognize America’s missing human right within the Copy[rite] Regime of 1790. This would make indexing by search engines and snippets immediately require affirmative authorization. This would immediately invalidate Hon. Denny Chin’s Google-books fair-use ruling that is already ignorant and obviously wrong.
2) Pursuing the criminal interception and disclosure of wire, oral, or electronic communications prohibited,18 §2511, makes punitive damages available if not avoided by the injunction now remaining in force. This would make punitive damages available for all book authors who were damaged by Hon. Denny Chin’s Google-books fair-use ruling that is already ignorant and obviously wrong.

Yes; there is an exact Blackstone quote that results in option one above. The Ninth Circuit en banc has no duty to consider legal facts not yet plead.