Google is fighting a court order that requires it to take down all copies of inflammatory anti-Islam video "Innocence of Muslims." On Thursday, the company filed an emergency motion that would allow it to keep the video available until a final decision is made in a copyright case involving one of the film's actresses. Earlier this week, two judges from the Ninth Circuit declared that Cindy Lee Garcia, who played a bit part in what she believed was a film called "Desert Warrior," would likely succeed in her attempt to sue Google and YouTube for copyright infringement and could suffer irreparable harm if it was left up. Google has removed the video, but it argues that letting an actor "own" the video in which they appear will cause "irreparable harm" to First Amendment rights.
Minor players can now "wrest control" from filmmakers, says Google
The case against Google and YouTube hinges on when an actor can hold a copyright over their performance, as well as whether keeping the video up poses a substantial threat to Garcia. In most cases, subjects of a video have given either implied or explicit consent to appear, ceding any copyright. But in this case, Judge Alex Kozinski said that "Innocence of Muslims" bore so little resemblance to the intended product that she could reasonably say she had never consented to appearing, and that since she had received death threats as soon as it was discovered on YouTube, there was a real threat to bodily harm — something that appeared to heavily inform Kozinski's decision to order a temporary ban as the case proceeded.
But Google argues this sets a dangerous precedent. "Under the panel's rule, 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," it says. "Absent a stay, Google, YouTube, and the public face irreparable harm because the panel's order will gag their speech and limit access to newsworthy documents-categorically irreparable injuries." It also decries a gag order that prevented it from talking about the decision until the opinion was issued.
"Protected speech ... is undoubtedly being gagged."
Garcia was only given a few pages to read in her performance for "Desert Warrior," and she had only a bit part in the film itself, one of her lines dubbed over with a derogatory reference to the prophet Muhammad. Actors in the film have said that their performances were selectively edited and redubbed in order to turn a nonsensical script into a would-be exposé of Islam. Since the controversy started, she and other actors have been caught in the crossfire. The takedown order, though, hinges on how much harm the videos' continued availability on YouTube causes. Google says that conversely, having to take them down causes its own irreparable harm. "Protected speech on a matter of broad public interest is undoubtedly being gagged," it says, "because the panel has suppressed the entire trailer, even though Garcia only claims to hold a copyright in the five seconds where she appeared."
The counterargument, made by the appeals court, is that the First Amendment doesn't cover copyright infringement. Google, however, says that the judges never established that copyright infringement had actually occurred, only that there was a possibility it had. It's also generally accepted that actors can only own the parts of a work that they are responsible for creating, and Google argues that by this token, the court shouldn't lump the whole video in with the few seconds Garcia appears. As the rest of the case goes forward, Garcia's role in the video will be a vital question: did her acting contribute to the film, or was it too minimal to be considered meaningful?
While Google is pushing back against the order, however, that doesn't mean that the videos are easy to find. It's possible to dig up "Innocence of Muslims" on YouTube, but the company has removed any copies that Garcia specified, and it's required to keep more from being uploaded. Depending on whether or not its motion is granted, the videos could be returned, but even then, we'll have to wait for either a settlement or a full trial for the issue to be firmly decided.