In an appeal being heard by 11 federal judges in Pasadena on December 15, Google (GOOG) says a court order that forced it to take down a notorious anti-Islam film trailer from its YouTube unit last February violated fundamental free speech, free Internet, and copyright principles.
The search giant’s arguments are being supported by dozens of amici curiae—interested outside parties—who are also up in arms over the precedent. These include Facebook (FB), Twitter (TWTR), Pinterest, Tumblr, and the Electronic Frontier Foundation (who say ruling violates protections afforded Internet publishers by the Digital Millenium Copyright Act); The New York Times Co (NYT), NPR, Public Citizen, and Techdirt publisher Floor64 (claiming it violates the First Amendment and the Communications Decency Act); Netflix (NFLX) and a bevy of documentary filmmakers, including Morgan (Super-Size Me) Spurlock (upset about its copyright holdings, which would “wreak havoc” with their business models); and a couple dozen legal scholars (incensed about all of the above).
Of course, none of the folks attacking the ruling has a fatwa on his head. Cindy Lee Garcia, the actress who brought the suit, does. She’s got amicus support from the Screen Actors Guild-American Federation of Television and Radio Artists and several other actors and musicians guilds.
The case is proof positive of the hoariest of old lawyers’ saws: Hard cases make bad law. Garcia v. Google is a classic of the genre.
Garcia says she was tricked into appearing in the infamous movie now known as The Innocence of Muslims, which depicts the Prophet Mohammed in the vilest of terms. When a 14-minute trailer of it was released on YouTube in Arabic translation on September 11, 2012, it triggered deadly protests in Cairo and other Muslim cities throughout the world.
It may or may not also have caused demonstrations in Benghazi, Libya, which preceded an attack on the U.S. consulate there in which four died, including U.S. Ambassador J. Christopher Stevens. The video’s perceived connection to that event—accurate or not—helped generate about 40 million clicks for the YouTube video, with many viewers doubtless assuming that Garcia was a willing participant in the incendiary, and, to many, blasphemous, propaganda reel.
Last February, in a ruling that stunned much of the legal establishment, Garcia persuaded a 2-1 majority of the U.S. Court of Appeals for the Ninth Circuit to issue a preliminary injunction ordering Google’s YouTube to take down all traces of the trailer and to patrol its site going forward to prevent any repostings. The ruling, written by the outspoken, ordinarily libertarian-leaning Alex Kozinski, found that Garcia was likely to win her claim that the trailer violated her copyright in her acting performance, a 5-second sliver of which had been included on the trailer.
Due to concerns among Kozinski’s Ninth Circuit brethren and sistren about whether he got this one right, an 11-judge panel of the same court is now set to rehear the case Monday. Google’s case will be argued by former Acting Solicitor General of the United States Neal Katyal, who is now with Hogan Lovells. Garcia’s will be argued by Cris Armenta, a Los Angeles solo practitioner who mainly represents entertainment industry clients.
Here’s Garcia’s side of the story, according to a declaration she filed in court and my telephone interview with her lawyer, Armenta. Back in July 2011, Garcia, a Los Angeles grandmother and ordained minister who was struggling to support herself and her severely disabled husband, answered a casting call. She read for a part in an adventure movie set in Arabia 2000 years ago, to be called Desert Warriors. She got it, and then spent three-and-a-half days filming. She was paid about $500 by a producer she then knew as Sam Bacile.
The following summer, Garcia checked back with Bacile about the status of the film, and learned that he’d just posted a trailer of it on YouTube.
To her horror, the film was an assault on the character of the prophet Mohammed. In the course of it, a brief clip showed Garcia acting a line that in the original script had read: “Is George crazy? Our daughter is but a child.” In this version, though, her line was dubbed over, so that she now appeared to be saying, “Is your Mohammed a child molester?”
The video was getting no attention online at the time, so Garcia, who was still struggling financially, took no immediate action.
In September, though, another version of the trailer, now dubbed in Arabic, was posted on YouTube. This one was was soon replayed on Egyptian television, and all hell broke loose. On September 19, an Egyptian cleric issued a fatwa calling upon “the Muslim youth in America and Europe … to kill the director, the producer, and the actors and everyone who helped and promoted the film.”
Garcia began receiving death threats, as well as threats to rape her daughter. She changed home addresses and her place of work. She was not alone in taking the death threats seriously, she asserts in the declaration. When she visited New York that month, Port Authority police forbade her from entering the LaGuardia airport terminal, arranging instead for a squad car to take her directly to her plane as it waited on the tarmac.
Google removed the Innocence of Muslims clips from its local YouTube sites in countries where it was outlawed, including Indonesia, India, Malaysia, Russia, Saudi Arabia, and Turkey. Though the video wasn’t forbidden in Egypt or Libya, Google temporarily blocked it there, too, citing “difficult circumstances.”
In the U.S., however, it refused to take it down, explaining that that it met YouTube’s “community guidelines.” Google chairman Eric Schmidt explained at a press conference that month: “We believe the answer to bad speech is more speech.”
Garcia sued Bacile, whose real name, she had come to believe, was Nakoula Basseley Nakoula. Nakoula had been convicted of federal bank fraud in February 2010, for a scheme involving taking out numerous credit cards under diverse names and social security numbers that didn’t belong to him. In September 2012 he told a federal court that his real name was Mark Basseley Youssef, so we’ll use that one here.
Youssef is a U.S. citizen, according to court records, and is an Egyptian Christian by ethnic background, according to his lawyer, Leonard Chaitin. Youssef denies misleading Garcia, Chaitin says in an interview, but Chaitin declines to detail Youssef’s defense at this time.
In any event, suing Youssef—for fraud and other torts—couldn’t get Garcia what she really wanted, which was to pull down the offensive trailers.
Only YouTube could do that, but it seemed to be shielded by two layers of adamantine legal protection. First, the First Amendment usually protects the right of anyone—be it Youssef or YouTube—to publish offensive speech, no matter how odious.
Second, the Communications Decency Act grants broad immunity to Internet publishers in particular, like YouTube, against liability stemming from content posted by their users. So even if Youssef was found to have commited some tort against Garcia—like fraud or defamation, say—YouTube would be protected by the CDA. The CDA encourages the creation of Internet forums for user-generated content, and it protects financially strapped startups against crushing legal costs that might otherwise strangle them in their cradles.
The narrow exception is that Internet publishers can be forced to take down copyright infringing content. But even in that case Internet publishers’ obligations are highly circumscribed by the Digital Millennium Copyright Act of 1998 (DMCA). Under the DMCA, for instance, publishers only need to take down links that copyright holders specifically identify; they don’t need to monitor their sites proactively to prevent infringing material from getting posted in the first place.
On September 24, Garcia filed the first of eight DMCA takedown notices, claiming she had a copyright interest in her 5-second performance in the trailer. Her lawyer, Armenta, also petitioned the U.S. Copyright Office to register Garcia’s performance.
Google and the Copyright Office both rebuffed Garcia, for basically the same reason. There’s no such thing, the copyright office said, as a copyright interest in an actor’s five-second performance captured in a snippet of a movie. “A motion picture is a single integrated work,” it wrote. The copyright in a movie belongs to its “author”—which is ordinarily either the studio, the producer, the director, or the screenwriter.
In September 2012 Garcia filed a copyright suit against Google and YouTube in federal court seeking a preliminary injunction ordering takedown of the trailers. In late November, in an unpublished, 3-page order, U.S. District Judge Michael W. Fitzgerald perfunctorily denied the injunction without a hearing, finding Garcia was unlikely to win her claim.
Fitzgerald found that he didn’t need to decide whether Garcia had any copyrightable interest in her performance, because, even assuming she did, she’d granted an “implied license” to Youssef to use her performance when she accepted money to act in Youssef’s film.
In February, the split Ninth Circuit panel overturned Fitzgerald in the stunning ruling by Kozinski. He rejected Fitzgerald’s “implied license” theory, because Youssef had defrauded Garcia about the nature of movie she was going to be in. “The film differs so radically from anything Garcia could have imagined when she was cast,” Kozinski wrote, “that it can’t possibly be authorized by any implied license she granted Youssef.”
This part of Kozinski’s ruling has the documentary filmmakers bent out of shape, since they often rely on the “implied license” theory to protect themselves from assertions of various rights by the people they film. Though they don’t quite admit the obvious—that they frequently mislead the subjects of their films about how unflatteringly they’re going to be portrayed in the finished movie—they express the problem this way: “Often … the narrative does not fully materialize until the filmmaker is in the editing room. Filmmakers regularly need to ‘radically’ alter the narrative to tell the most truthful or compelling story.’”
Be that as it may, Kozinski’s rejection of the “implied license” theory meant he had to squarely address the underlying question: Can an actor have a separately assertable copyright in her 5-second performance in a movie? Kozinski answers yes, though he admits that the question is “fairly debatable.” He then continues, opaquely: “We need not and do not decide whether every actor has a copyright in his performance within a movie. It suffices for now to hold that … Garcia is likely to prevail based on the record and arguments before us.”
That part of his ruling has Netflix in a tizzy. “If the panel opinion stands,” its lawyers write, one DMCA takedown notice “from the actor who played Juror Number Four could be enough to justify removal of My Cousin Vinny from Netflix.”
Kozinski’s concession that his copyright ruling was “fairly debatable” lies at the root of a chorus of complaints from media defendants, like the Los Angeles Times. If it’s not certain that any copyright infringement is even going on, then what really seems to be happening here is that the court is suppressing a message it finds offensive under the guise of a copyright ruling. That would constitute “a direct restraint on controversial speech,” their lawyers argue, which is the core of what the First Amendment prohibits.
The media amici have another beef with Kozinski, too. For the first week that his ruling was in effect, it was secret! He issued a gag order forbidding Google and Garcia from even telling the public that a decision had been rendered. He did this so that users wouldn’t make copies of the trailer and repost them elsewhere—although, obviously, in the more than 14 months since the trailer had become notorious, this had already widely occurred.
Finally, when Kozinski lowered the boom, he issued one of the broadest takedown orders every decreed. Apparently miffed that Google wouldn’t take down the trailer in the exercise of its own discretion—as it did in Libya and Egypt, “due to difficult circumstances”—he required that YouTube not only scrub its sites worldwide of the trailer, but also that it proactively patrol its sites going forward to make sure that no one uploaded new versions of the film or trailer. (He made an exception for any version omitting Garcia’s image.) This is the part of the ruling that has Facebook, Twitter, Pinterest, and the EFF so concerned. They say the order conflicts with the DMCA, which contemplates that Internet publishers will only have to passively and reactively respond to takedown requests for specifically identified offending files. “It puts Google in the role of a copyright cop,” write lawyers for the EFF, “affirmatively monitoring user speech for signs of alleged infringement.”
Kozinski’s ruling begins to looks like a cardboard duck in a shooting gallery. On the other hand, it’s a duck that’s bought Garcia some time—time during which, perhaps, emotions have had a chance to calm and memories, to fade.
Maybe that was the point. Hard cases make bad law.
Correction: An earlier version of this misspelled the name of Garcia’s lawyer, M. Cris Armenta. I regret the error.