Did Federal Court Blunder in Banning Anti-Islamic Video from YouTube?

Sunday, March 02, 2014
Cindy Lee Garcia

Critics of an anti-Islam video promoted by right-wing Christians may have rejoiced when a federal court ordered it be taken down from YouTube, considering the short film sparked worldwide protests that killed dozens of people. But at least one civil rights group says the ruling was terrible news from a constitutional standpoint, particularly the guarantees that guard free speech protections.


The 14-minute video (Innocence of Muslims) became the subject of an unusual copyright lawsuit when an actress who appeared only briefly in it sued YouTube and its parent company, Google.


Cindy Lee Garcia claimed she was tricked by the video’s writer and producer, Mark Basseley Youssef (aka Sam Bacile), who told her she would be part of an adventure movie called Desert Warrior.


Instead, Garcia wound up in an anti-Muslim polemic that featured her for about five seconds. In her brief screen appearance, Garcia said her lines were dubbed over to make it seem that she had asked if the Prophet Muhammad was a child molester.


The video outraged Muslims all over the world and resulted in violent demonstrations.


Garcia’s legal case, though, wasn’t about the video’s backlash. Instead, she argued that the overdubbing of her part represented a violation of her artistic copyright, even though she had no creative role in developing or editing the video.


The first judge to hear her case rejected Garcia’s arguments. But after she petitioned the Ninth Circuit Court of Appeals to review the decision, a panel of judges voted 2-1 to overrule the lower court. The appellate justices ordered Google and YouTube to comply with the plaintiff’s demand for the video to be taken down.


Corynne McSherry at the Electronic Frontier Foundation, a civil liberties organization, says the Ninth Circuit decision was wrong.


“First, the ruling blows past the First Amendment concerns with the time-worn observation that ‘the First Amendment does not protect copyright infringement.’ Of course it doesn't, but neither are copyright cases immune from the same balancing test that applies to any injunction. And the standards for this kind of injunction—a classic prior restraint—are particularly high. Indeed, as the Supreme Court has observed repeatedly, injunctions that shut down speech are particularly disfavored. Court after court has held that they should not be issued where, as here, the case is ‘doubtful’ but only where the law and the facts clearly favor an injunction,” McSherry wrote.


She went on to argue that Garcia “claiming a copyright interest in her brief performance” represented a “novel theory” that “doesn't work well here.”


“After all, Garcia herself admits she had no creative control over the movie, but simply performed the lines given to her. There may be a context where an actor could assert some species of authorship, but this doesn't seem to be one of them. Movie makers of all kinds should be worried indeed,” McSherry added.


Google called the order a “classic incursion on the First Amendment,’ and promised to fight the ruling.

-Noel Brinkerhoff


To Learn More:

Bad Facts, Really Bad Law: Court Orders Google to Censor Controversial Video Based on Spurious Copyright Claim (by Corynne McSherry, Electronic Frontier Foundation)

Secret ‘Innocence of Muslims’ Order Caused Google to Go Ballistic (by Eriq Gradner, Hollywood Reporter)

Actress Gets Anti-Islamic Film Taken Off YouTube (by Tim Hull, Courthouse News Service)

Opinion: Cindy Lee Garcia v. Google, et al (U.S. Court of Appeals for the Ninth Circuit) (pdf)

Actress from Anti-Muslim Film Tries to Sue YouTube for Removal of Video (by Noel Brinkerhoff, AllGov)


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