By Nora Elmeligy
Earlier this week, a large number of interested parties submitted nine amicus briefs in support of Google’s petition for a rehearing of a ruling by a 9th U.S. Circuit Court of Appeals panel, which ordered the company to take down the controversial video, “Innocence of Muslims,” from YouTube.
Those submitting the briefs included 34 Internet and copyright law professors, 17 tech companies — including Facebook and Twitter — and 18 media companies, including NPR.
The briefs all argued that the ruling ordering Google to take down the video violates the fundamental right of online sites to host content that they did not create.
In one of the briefs, a large group of legal experts argued that the ruling violates a section of copyright law that “provides the legal foundation for many of the most popular websites that enable users to communicate with each other or the world at large.”
In essence, they argued that if this decision is not reversed, those who are featured in any video would have far too much power over both the content creators and the content hosts going forward.
Social media companies, including Facebook, stated that even though they compete with each other and with Google, they unanimously urged the court to rehear the appeal.
Speaking to its own interests, Netflix stated that despite the “odious” nature of the video, “the panel majority risks wreaking havoc with established copyright and business rules on which all third party distributors, including Netflix, depend.”
Floor64, the company that puts out Techdirt, acknowledged the harm that this video might have done to an American actress, Cindy Lee Garcia, whose image appeared in the video in a way she did not permit, but wrote in its brief that honoring Garcia’s copyright “won’t make (the video) cease to exist or the matter any less important.”
The video, which was posted to YouTube in July 2012, was produced by a convicted felon who has gone by at least six pseudonyms, and depicted the Muslim prophet Muhammad in a highly negative light. Actress Garcia had a five-second appearance in the video, and said she agreed to act in it under the premise that it was a “desert adventure” movie trailer.
In fact, according to a brief filed by her lawyer, Garcia said that the producer, Mark Basseley Youssef, had dubbed over her words to make it seem like she called the prophet a pedophile. She was not aware of the changes made to her performance until she received calls from reporters about the controversy ignited by the video.
She also said she lost her job and has received death threats due to her role in the video.
As word of the video spread around the world in the summer and fall of 2012, demonstrations and violent protests broke out in Egypt and spread to other Arab and Muslim nations and to some Western countries. The protests led to hundreds of injuries and more than 50 deaths.
On Sept. 11 that year, a group of local Islamist militants launched a brutal attack on the U.S. diplomatic compound in Benghazi, Libya, killing four Americans, including U.S. Ambassador J. Christopher Stevens. “Innocence of Muslims” was cited in national political debates as a possible factor in the Benghazi attack.
After unsuccessful attempts to have Google remove the video from YouTube, Garcia and her lawyer, Cris Armenta, applied for a copyright to her performance. Reuters reported the response of the U.S. Copyright Office:
“For copyright registration purposes, a motion picture is a single integrated work. Assuming Ms. Garcia’s contribution was limited to her acting performance, we cannot register her performance apart from the motion picture.”
She sued Google, claiming a copyright to her brief appearance, and hoping to win on the grounds that said copyright was violated when her performance was used in a way she didn’t intend.
Contrary to a district court’s earlier ruling and the Copyright Office’s decision, two of the three judges on the appellate panel ruled on Garcia’s side, granting her claim on the basis that the producer, Youssef, had violated any license he had with Garcia’s performance when he lied about the nature of the video, leading to real threats against her life.
Content of Video ‘Beside the Point’
But according to Eric Goldman, director of the High Tech Law Institute at Santa Clara University, and a co-author of one of the amicus briefs filed this week, the content of the video is actually beside the point. He said the crux of the ruling is copyright law, and the February ruling establishes a troubling precedent affecting almost all filmmakers and video content creators.
Goldman outlines the following scenario: An actor agrees to appear in a film, but later decides he doesn’t like how his performance turned out, or that his vision differs from the producer’s.
Under this ruling, an actor could theoretically override the production (i.e., a film) by requiring his performance (no matter how brief) be removed, potentially rendering the production entirely impossible.
This same power could theoretically lie in the hands of anyone depicted in a user-generated video on YouTube. And the extra work required by producers to eliminate these types of conflicts could ultimately result in higher costs for media consumers.
Internet and copyright law experts nationwide, including Goldman, have responded very critically to the decision, voicing the hope that it will be reversed.
Goldman said that copyright law should never have been brought into this case at all. Garcia’s concerns would typically have been taken up with the video’s producer, Youssef. Since Youssef was an absentee in the case, Google was forced to step in on his behalf — another flaw with the case, as Google was not affiliated with production of the video.
Currently, the 11 judges of the 9th Circuit are reviewing Google’s request and have until May 7 to announce whether they will hear the case again.