The Innocence of Muslims

A US appeals court has overturned a controversial ruling that required YouTube to take down a video that disparaged Muslims.

One of the actresses in the film sued to take it down and won, but an appeals court has now ruled she didn't have the right to control the film's distribution.

A segment of the film titled Innocence of Muslims was released in 2012. Muslims in the Middle East responded with violent protests and death threats were made to the actors.

The latest court ruling said the order to take the movie down was unwarranted and incorrect and continued:

The appeal teaches a simple lesson -- a weak copyright claim cannot justify censorship in the guise of authorship.

Google, which owns YouTube, argued that allowing someone with a bit part in a movie to suppress the final product could set a dangerous precedent that could give anyone involved in a production the right to stop its release.

A second actor has sued Google over a movie called Innocence of Muslims that mocked the religious character Mohammad. Segments of the film were released on YouTube and violent protests were initiated in response in the muslim world.

Gaylord Flynn said he has received death threats and fears for his life while Google continues to provide its users with access to the film, according to his lawsuit, filed in a California federal court.

Flynn, who is also suing the film-maker, Nakoula Basseley Nakoula , said Google had refused to block access to the movie, even though a ninth US circuit court of appeals panel last February ordered it taken off Google's video-sharing website, YouTube. In that case, actor Cindy Lee Garcia sued Google for an injunction, claiming she owned the copyright of her performance.

Google argued at the time that an injunction amounted to restricting speech in violation of the US constitution. The company is demanding a rehearing from the full appeals court.

Flynn said the film-maker concealed the true nature of his production. He said he thought he was hired for a movie called Desert Warrior and never consented to be in a religiously oriented film nor in one that propagates hate speech . Flynn, like Garcia, said he did not sign a release and his own copyright interests remain intact, according to the complaint.

Update: Appeal

15th December 2014. See  article from  bigstory.ap.org

A federal appeals court will reconsider a decision to order YouTube to take down an anti-Muslim film clip. Muslims in the Middle East responded violently resulting in death threats to the actors over claims of blasphemy.

An 11-judge panel of the 9th U.S. Circuit Court of Appeals in Pasadena will hear arguments by Google, which owns YouTube, disputing the court's decision to remove Innocence of Muslims from the popular video sharing service.

Alex Lawrence, a copyright and intellectual property lawyer in New York not connected with the case, said he thinks the court will reverse the earlier ruling because the judges reached a decision to give Garcia some relief on thinly grounded law:

There's a lot of sympathy for Miss Garcia, Lawrence said. She got paid $500 and received death threats. Everyone feels sympathy for her, but using copyright in this way is a real problem for a lot of industries.

Based on a copyright claim that is dubious at best, the Ninth Circuit US Court of Appeals has ordered Google to take offline a video that is the center of public controversy. We can still talk about it, but we can't see what we are talking about. We're hard-pressed to think of a better example of copyright maximalism trumping free speech.

The case was brought by an actress, Cindy Lee Garcia, who was tricked into performing in a short anti-Islamic film (she was told the film was about something very different) and, as a result, found herself subject to death threats. Garcia then filed a lawsuit against Google and several others, claiming the video infringed her copyright in her performance (approximately 5 seconds of a 13 minute video). Then she asked the court to require Google to take the video down. The district court wisely refused, noting that Garcia's copyright interest was unclear at best. Garcia appealed, and today the Ninth Circuit agreed with her, and ordered Google to take down all copies of the video and take reasonable steps to prevent further uploads.

The merits of this case are indeed doubtful. Very doubtful. Garcia is claiming a copyright interest in her brief performance, a novel theory and one that doesn't work well here. After all, Garcia herself admits she had no creative control over the movie, but simply performed the lines given to her. There may be a context where an actor could assert some species of authorship, but this doesn't seem to be one of them. Movie makers of all kinds should be worried indeed.

There are other problems with the legal analysis, but the decision is equally if not more troubling for the signal it sends. Based on nothing more than a tenuous (at best) copyright claim, the court has ordered a service provider to censor a video that has been the subject of considerable debate and comment, with only the most cursory analysis of the speech harms it will cause. If Garcia had brought a claim under virtually any other theory, we expect the court would have taken more care. Unfortunately, it seems copyright exceptionalism has won the day.

Update: Appeal

1st March 2013. See  article from  techdirt.com

As expected, Google has quickly filed an emergency motion for a stay on the horrific 9th Circuit ruling that the company needed to take down all copies of the Innocence of Muslims film and block it from being re-uploaded anywhere. Google has made it clear that it will fight this decision, starting with asking the 9th Circuit for an en banc rehearing (ie a case heard by a large panel of judges).

Appeals courts don't often grant requests for en banc hearings and, as such, often don't grant stays (basically holding off enforcing the order). However, with this case generating so much attention (and condemnation), hopefully enough of the judges in the 9th Circuit agree that it's worth rethinking Judge Kozinski's order.

Google's motion lays out the basic argument, highlighting that the ruling simply invents new law and ignores precedents that the court is bound by. It also highlights how the ruling seems to get some rather basic issues flat out wrong. Furthermore, it highlights that there is real harm from the censorship imposed by the ruling, while leaving the video up for a little more time is unlikely to create any additional harm (if it ever created any harm in the first place).

Update: Appeal Denied

2nd March 2013. See  article from  mercurynews.com

Google has been rebuffed in its effort to restore an anti-Muslim video on YouTube, shot down by a federal appeals court that on Friday rejected arguments that requiring the company to take it down will cause irreparable harm because of its impact on online free speech.

In a brief order, the 9th U.S. Circuit Court of appeals denied a stay of a ruling earlier this week ordering Google to remove the Innocence of Muslims video from YouTube. The appeals court ordered YouTube to comply with the order within 24 hours, although Google lawyers already indicated in court papers they have already taken down the video.

Google argued the video should be restored on YouTube while the company presses an appeal of this week's decision, but the 9th Circuit refused. Google warns the ruling could have damaging free speech implications for the online world and make it too easy for anyone to get an order removing video content from a website:

Under the (9th Circuit ruling), minor players in everything from Hollywood films to home videos can wrest control of those works from their creators, and service providers like YouTube will lack the ability to determine who has a valid copyright claim.

Update: Fighting On

8th March 2013. See  article from  theguardian.com

Google has been denied two emergency stay motions against the decision by a divided three-judge panel. It vowed to continue resisting. We strongly disagree with this ruling and will fight it, a spokesperson said in an emailed statement.

People who search for the video find a black screen with a short message from Google repeating its pledge to fight the decision. If the company fails to persuade the same judges to reverse their ruling its last resort will be the supreme court, which may choose not to hear the case.