Remember the video that President Obama cited as the reason behind the attacks in Benghazi? The 9th Circuit Court of Appeals has voted 2-1 to order the video be taken down from YouTube–though not for the reasons you may expect.
The court ruled that YouTube must take down Innocence of Muslims, the (rather poorly made) “documentary” about the religion of Islam, not on the basis that it was anti-Muslim, but because of a copyright violation. The plaintiff in the case, Cindy Lee Garcia, claims that she was hired to work on a totally different film, and was misled about the nature of the final product. Indeed, her short appearance had her own voice dubbed over by another actor. On top of this, Ms. Garcia claimed she was receiving death threats for her part in the film.
Ms. Garcia is asking to have the video taken down because of her copyright claim, even though she was barely in the video itself and constituted a very small role in its production with no control over shooting, writing, or post-production. Are we now going to allow bit players the power to take down an entire production? What about the other actors and personnel involved in the production? What if they disagree with the removal of a production, as it may infringe on their rights to their performances (and potential royalties)?
Marvin Ammori notes that this ruling creates a host of a thorny legal questions. Indeed, people won’t even need to sue to take things down; DCMA takedown notices will expand greatly. He also notes that uncertainty over who owns copyright will increase, which will make it harder to actually produce anything. He brings up tragedy of the anti-commons, which really is a tragedy when it involves speech.
Corynne McSherry at the Electronic Frontier Foundation also makes a great point that Ms. Garcia’s copyright claim is on very shaky ground:
Second, the merits of this case are indeed doubtful. Very doubtful. Garcia is claiming a copyright interest in her brief performance [5 seconds from a 13 minute production], a novel theory and one 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.
This is, of course, before we get to the elephant in the room: the First Amendment. The majority opinion asserts there is no problem with this because the First Amendment doesn’t protect copyright infringement, but we’re talking about a controversial video inextricably linked to a event of great historical significance, as well as one explicitly promoting a particular opinion and viewpoint. Do copyright questions override these? That would seem to put free speech on rocky ground in the United States.
This is certainly not a clear cut issue by any means. We cannot forget that Ms. Garcia was allegedly misled by the video’s producer into working for what was essentially another production, that was recut and redubbed into Innocence of Muslims. But at the same time, couldn’t there have been alternative solutions? Did the video really need to be taken down (and necessitate a court order forcing YouTube to “take all reasonable steps to prevent further uploads”)? Could Ms. Garcia really claim a copyright when she was just performing a set of instructions for an incredibly tiny part in this production? What sort of Pandora’s Box are we opening with this decision?
Read the full court opinion here.