As Google and other Silicon Valley firms decry an appellate court ruling holding that an actress had a copyright interest in her performance, enough to force YouTube to remove an inflammatory “Innocence of Muslims” video, the judges who ruled for her request have amended their opinion.
The original, unexpected 2-1 decision from the 9th Circuit Court of Appeals in February held that even though Cindy Lee Garcia had a minor role in the movie, which triggered protests in the Muslim world in 2012, she had an independent copyright interest in her performance. That allowed her to win an injunction to force YouTube to take down the video. The judges concluded that she was likely to suffer irreparable harm if the movie continued to appear on YouTube, as she had received death threats for her connection to the project.
Their judgment still stands, but 9th Circuit Court of Appeals Chief Judge Kozinski wrote in an amended opinion released on Friday that acknowledges one of the recent developments in the case: The Copyright Office turned down Garcia’s request to register a copyright of her performance.
He wrote that the “district court may still defer to the Copyright Office’s reasoning, to the extent that it is persuasive.” And he also wrote that the district court was free to raise issues of whether YouTube’s posting of her performance was a “fair use” of copyrighted material. Kozinski wrote that they didn’t address the “fair use” issue in February because they were not raised then by Google.
Nevertheless, even though the 9th Circuit has outlined avenues for going forward, it didn’t change the judges’ decision, which was to grant the injunction ordering Google to remove the video.
Google and groups like Film Independent, the Intl. Documentary Assn. and the California Broadcasters Assn. argue that the ruling will stifle free speech and creativity if even minor players can claim some kind of copyright ownership to a performance. Others companies, like Netflix, eBay, Facebook, Twitter and Yahoo, also have lent their names to amicus briefs. They also take issue with the court’s order that YouTube prevent future uploads of the video, arguing that it poses “a serious threat” to business if online service providers are required to monitor their services for all possible copyright infringements.
Judge N.R. Smith, who dissented, wrote that the majority was attempting to “hedge” their opinion that Garcia had a copyright interest in her performance, but that instead its “equivocation cements its error.”
The majority, however, was clearly disturbed by the fact that Garcia was told that she was performing in a movie called “Desert Warrior,” yet the movie’s writer and producer, Mark Basseley Youssef, instead turned it in to “Innocence of Muslims,” with her voice dubbed over to that she appeared to be asking, “Is your Mohammed a child molester?” They also were troubled that she was receiving threats.
Google is still awaiting word on whether the 9th Circuit will grant it an en banc rehearing.