The Copyright Law and Freedom of Speech

In a decision (2-1)  that apparently has not woken up any liberals, or Hollywood producrs,   the US Ninth Circuit Court of Appeals has ordered Google to take down the Youtube video of "Innocence of the Muslims".  This is the video that sparked riots in the Middle East including the riots leading up to the attack on the US Embassy in Benghazi.

The basis of the decision is that the Court thinks that Cindy Lee Garcia, the plaintiff and one of the actresses in the video, and who claims a copyright interest in the video,  is likely to prevail in her copyright infringement claim.   Per the court documents, the producer of "Innocence of the Muslims", Mark Basseley Youssef hired Cindy Garcia, gave her a four page script in which her character appeared, and paid her $500 for three and a half days of filming for a movie "Desert Warrior".   The movie "Desert Warrior" never materialized, instead Youssef dubbed over the material and used (some of?)  it in "Innocence of the Muslims".   Google says her part amounts to five seconds.

The Court notes that

Google argues that Garcia didn’t make a protectible contribution to the film because Youssef wrote the dialog he spoke, managed all aspects of the production and later dubbed over a portion of her scene.

And of course, Youssef hired Garcia, and holds the copyright to the script (so Garcia's work is derivative).   The Court asserts even under such circumstances that an actor's work is original, and the actor (well, maybe Garcia only) likely holds a copyright interest in her appearance in the movie.

We need not and do not decide whether every actor has a copyright in his performance within a movie.  It suffices for now to hold that, while the matter is fairly debatable, Garcia is likely to prevail.

Now, the case is not likely to end here, and here the Court did what is another apparent innovation - it ordered Google to take down the Youtube video while this matter is litigated.  It dismisses the idea that this constitutes a prior restraint on the freedom of speech.

The dissenting opinion in the case points out that what the Court majority has done is issue a mandatory injunction, and that the legal standard for issuing mandatory injunctions is very high, "the law and the facts must clearly favor the moving party".

Instead, the majority makes new law in this circuit in order to reach the result it seeks.  We have never held that an actress’s performance could be copyrightable.  Indeed, “[t]here is little case law or statutory authority as to the position of performers as authors of an audiovisual work under U.S.  law.” F . Jay Dougherty,  Not a Spike Lee Joint?  Issues in the Authorship of Motion Pictures under U.S. Copyright Law, 49 UCLA L. Rev. 225, 300 (2001) 

The Court's opinion is available here (PDF).

We note that the question of why the Court sought a particular result is not mentioned in the opinion.  We can only guess, and in that context, we should note that the Federal Government had pressured Google strongly to take down the Youtube video.  The ACLU, that ever-alert watchdog, has decried the heckler's veto exercised by the Court.

We have a term for censoring speech because others might react badly to it—it's called a heckler's veto. And it's prohibited under our Constitution. It's the reason we don't prohibit controversial speakers like the KKK from marching down public streets out of concern that bystanders will react violently. Under our Constitution, we don't allow the government to censor speech on the theory it might cause someone else to misbehave.  Our Constitution—and common sense—tell us to target the threats and the violence, rather than the protected speech.

Only two of the three judges voted for the misguided takedown order—the third, Judge Smith, balanced the harms differently, and noted that taking down the film was a heavy-handed and unprecedented move by the court. Let's hope the case gets heard by the full Ninth Circuit court, and that they hear the clarion call of Judge Smith's wise words.

My guess is that the American Academy of Religion and its members will remain silent about this blatant misuse of the copyright law to suppress inconvenient and offensive speech.   This, in my opinion, arises from their ideological predilections - they are much more respectful of their fellow Abrahamic monotheistic faiths than of pagan religions. The conservative media will make some noise about it, not because of the infringement on freedom of speech, but because it involves a hated group, the Muslims.

Compare the relative silence (the opinion was given on February 26th and today is March 1st)  to the brouhaha when Penguin Books in India, under the pressure of a court case brought by a private party, reached a private settlement with the plaintiff and withdrew the offending book by Wendy Doniger.  It would seem to any objective person, that in the US, the Court has created new law to get the result that officialdom strongly desired.**

Putting aside the double standard in the media, there is, I predict, going to be a very unfortunate side-effect.   We should remember that section 295-A of the Penal Code in India, the law under which the suit against Penguin Books was brought, was enacted because of the threat to the British Indian Government that there would be nationwide violence if there was no legal remedy for a pamphlet (Rangila Rasul), that offended Muslims.   It would seem that even a United States Federal Court is not immune to pressure arising from the offending of Muslims on an international scale; and of course, this pressure arises from large-scale violence -- riots in Egypt and Libya and all over the Middle East.   The sad conclusion will be drawn is that violence is effective.

** I should make it clear, if it hasn't been so far,  that to me, neither the withdrawal of Doniger's book from India nor the removal of "Innocence of the Muslims" from YouTube is a good outcome.

PS: There is a third thing to note.  Consider all the people in the Middle East who did not riot in response to "The Innocence of the Muslims".   Yielding to bullying as in the case of Section 295A or in the case of the US Ninth District Court grants effective representation of the Muslim communities worldwide to those who would riot.  

PPS: Good news, dailykos informs us

The Ninth Circuit Court of Appeals has entered a revised Order to make clear that:

This order does not preclude the posting or display of any version of “Innocence of Muslims” that does not include Cindy Lee Garcia’s performance.