Perhaps the biggest shock here isn’t that the 9th Circuit reversed itself en banc, but that they managed to get this question correct at all. Earlier, a three-judge panel upheld a challenge to the controversial YouTube video “Innocence of Muslims” based on a copyright challenge by one of the actors who appeared in it. Cindy Lee Garcia maintains that the producers defrauded her into participating in the film, and that she could claim a copyright on her performance in order to force YouTube and other Internet providers to pull the video. When Google and others demanded a review by the full court, the 9th Circuit set up an 11-judge special panel, which overturned the initial ruling.
The ruling went 10-1 in favor of the First Amendment:
Reversing a previous ruling, a special 11-judge panel of the 9th U.S. Circuit Court of Appeals rejected the arguments raised by Cindy Lee Garcia, who pressed her legal fight as a result of death threats she received after she was unwittingly spliced into a 2012 film clip that cast her as disparaging the prophet Mohammed in the “Innocence of Muslims” video. The court backed Google and other Internet companies, with only Judge Alex Kozinski dissenting. …
A divided three-judge 9th Circuit panel last year backed Garcia’s arguments, based on violations of federal copyright law, that she was duped into a performance that resulted in unrelenting death threats. The court’s order requiring YouTube to take down the film remained intact while the legal showdown unfolded. But the 9th Circuit’s ruling Monday takes that order off the books, finding that it violates First Amendment protections. …
Companies such as Adobe, Twitter, Facebook and Pinterest warn that the ruling placed severe burdens on Google and other online providers, saying it “tramples upon both fundamental copyright principles and related First Amendment interests.”
Garcia does have some backing, including a recent legal brief from Hollywood’s Screen Actors Guild, which urged the appeals court to find that actors can own copyrights to performances within movies.
To call Garcia’s and SAG’s view of copyright novel would be an understatement. As the respondents explained to the court in both appeals, it would essentially give every performer in every production the right to veto publication regardless of ownership position in the organization. Even if the court carved out an “assassin’s veto” by proxy, any hint of threat would so disrupt publication as to make it nearly impossible. The owners of the production have copyright for the finished product, not the hired workers who got paid to contribute to it, unless they specifically had such claims as part of their employment agreement.
But what about the alleged fraud committed by the publishers? Garcia has remedies available through the courts, especially if she can prove the case enough to get the 9th Circuit to momentarily forget everything they knew about copyright law and freedom of speech. That cannot rise to a validation of government-imposed censorship, because to allow that would be a huge camel’s nose inside a very important tent, so to speak. It’s the mother of all free-speech slippery slopes. (It’s certainly possible to get a judgment that financially burdens the producer so much that he’s forced to withdraw the video, but that’s not censorship on the part of government.)
As to Garcia’s plight, the court noted its sympathies:
“By all accounts, Cindy Lee Garcia was bamboozled,” Judge Mary Margaret McKeown wrote for the court. “We are sympathetic to her plight.”
But deception is not sufficient evidence to warrant a copyright takedown, McKeown said, adding that Garcia’s claim amounts to “copyright cherry picking.
“In this case, a heartfelt plea for personal protection is juxtaposed with the limits of copyright law and fundamental principles of free speech,” McKeown wrote. “The appeal teaches a simple lesson—a weak copyright claim cannot justify censorship in the guise of authorship.”
Interestingly, both National Journal and the San Jose Mercury News only mention the Benghazi attack in passing, perhaps a good choice considering the emergence of the Defense Intelligence Agency memo earlier today. It turns out that there was a lot of fraud involving the use of Innocence of Muslims, and Cindy Lee Garcia was hardly the only one duped by it.
Garcia could appeal this ruling to the Supreme Court. They turned down one First Amendment challenge today, though, in the Wisconsin John Doe investigation, preferring to let the state courts resolve the issues. They may not be keen to take this case and its novelty on, either.