9th Circuit’s Controversial “Innocence of the Muslims” Ruling
The 9th Circuit Court of Appeals has issued a controversial decision orderingr that Google take down the controversial video “Innocence of the Muslims” which caused demonstrations across the Muslim world and contributed to the assault on the U.S. consulate in Benghazi. The case was brought by Cindy Lee Garcia, an actress who claimed that her brief scenes in a movie called “Desert Warrior” were repurposed for a movie titled “Innocence of Muslims” and her performance had been partially dubbed over so that she appeared to be asking, “Is your Mohammed a child molester?”
Garcia claimed the use of her performance without authorization constituted copyright infringement and the court agreed even though her performance constituted only 5 seconds out of a thirteen minute video. The court found that since Garcia was not an employee her performance could not be a work made of hire and that the director’s deception and the fundamentally different nature of the end product undermines any possible implied license argument.
The dissent disagreed that the performance is copyrightable. Congress has listed examples of copyrightable works, like architectural works, motion pictures, literary works, and pictorial or sculptural works. Id. The nature of these works is significantly different from an actress’s individual performance in a film, casting doubt on the conclusion that the latter can constitute a work.,. . . Therefore, “[i]n no case does copyright protection” extend to an acting performance, “regardless of the form in which it is described, illustrated, or embodied in” the original work.
Google has reluctantly complied with the take down order, although the video can be found on other sites.
The decision has been heavily criticized.
This opinion sucks rotten eggs. It is so terrible that there’s simply no point trying to make sense of it. I’m fascinated by well-meaning folks who have tried to treat it as a “serious” statement of the law. It’s not. It’s a one-off hack of the law, and treating it as anything more will take you towards insanity.
We’re hard-pressed to think of a better example of copyright maximalism trumping free speech.
In short, this video and the prospect of censoring it have been major flashpoints in the debate over online free expression. Yet yesterday’s opinion dismissed these concerns with a single sentence, stating that “the First Amendment doesn’t protect copyright infringement.” While that may be true, this isn’t straightforward wholesale piracy. The novel copyright claim here pertains to only 5 seconds of the overall video, which appears to be otherwise non-infringing. At this stage of the case, when actual infringement has not been conclusively determined, the court should have weighed the very real free-expression implications from blocking the entire video against Garcia’s interest in halting the dissemination of her performance in the video. From reading the opinion, you’d hardly know that blocking the video on a worldwide basis raises any free-expression issues at all.
Almost everything about Kozinski’s ruling here is troubling. The copyright interpretation just seems very far out of bounds with just about everything having to do with copyright law. It will create tremendous problems for the film industry. The First Amendment implications of both the takedown and the gag order are similarly troubling.
However painful this experience has been for Garcia, the solution cannot be to censor all access to a movie that’s at the heart of global debate about policy and politics. Any court order issued in the middle of a lawsuit (called a “preliminary injunction”) must be in the public interest. And the protections of the First Amendment are, unquestionably, of the highest public interest. They include the right to see, hear, access, and share information. Yet, those considerations are shamefully absent from the court’s analysis, which credits only the possibility of future harm to Garcia, based on the past actions of nutcases who threatened her after the movie was released.
We have a term for censoring speech because others might react badly to it—it’s called a heckler’s veto. And it’s prohibited under our Constitution. It’s the reason we don’t prohibit controversial speakers like the KKK from marching down public streets out of concern that bystanders will react violently. Under our Constitution, we don’t allow the government to censor speech on the theory it might cause someone else to misbehave. Our Constitution—and common sense—tell us to target the threats and the violence, rather than the protected speech.
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