Google Wins ‘Innocence of Muslims’ Rights Fight

     PASADENA, Calif. (CN) – In a victory for Google, an actress cannot claim authorship over her five-second appearance in the movie trailer “Innocence of Muslims,” the full 9th Circuit ruled, reversing its panel’s “dubious and unprecedented” ruling on copyright law.
     In 2012, a 14-minute trailer of “Innocence of Muslims” caused outrage after it was uploaded on to YouTube, leading to protests and violence in the Muslim world.
     That same year, actress Cindy Garcia sued the video-sharing site’s owner, Google, claiming that filmmaker Mark Basseley Youssef aka Sam Bacile and Nakoula Basseley Nakoula duped her into believing she would be appearing in an adventure movie called “Desert Warrior.”
     After her performance was shot, however, filmmakers dubbed her voice to include anti-Islamist dialogue in Arabic.
     Claiming that she had received death threats after the video went viral, Garcia won an injunction against Google at the 9th Circuit. The panel’s decision came after a federal judge previously ruled against her in November 2012.
     After the appeals court ruling, and with the tech, media and entertainment industries watching closely, the court agreed to reconsider the case before the entire bench last year.
     Netflix, “Supersize Me” filmmaker Morgan Spurlock, Facebook, Gawker Media, and Twitter filed legal briefs in support of Google, concerned that the panel’s decision could change the landscape of copyright law by allowing the actress to claim authorship of her performance.
     But Circuit Judge M. Margaret McKeown on Monday handed them a victory, finding that U.S. District Judge Michael Fitzgerald did not abuse his discretion in denying Garcia’s takedown request.
     “In this case, a heartfelt plea for personal protection is juxtaposed with the limits of copyright law and fundamental principles of free speech,” McKeown wrote for the en banc court. “The appeal teaches a simple lesson – a weak copyright claim cannot justify censorship in the guise of authorship.”
     McKeown overturned an order of the 9th Circuit’s three-judge panel – led by then-Chief Judge Alex Kozinski – ordering Google to take down the trailer. Prior to issuing an opinion in 2014, the panel had issued a secret order to Google, demanding that it take down the trailer within 24 hours, McKeown noted in her opinion.
     Finding that copyright law did not support Garcia’s claim of authorship over her performance, McKeown said Garcia may have fared better if she had instead sued for defamation or right of publicity.
     The panel had no reason to doubt Garcia’s claim that she was deceived and received death threats after the trailer went viral, the judge said. But its injunction was “unwarranted and incorrect as a matter of law,” and “gave short shrift to the First Amendment values at stake,” she added.
     “The mandatory injunction censored and suppressed a politically significant film – based upon a dubious and unprecedented theory of copyright. In so doing, the panel deprived the public of the ability to view firsthand, and judge for themselves, a film at the center of an international uproar,” McKeown wrote in her 30-page opinion.
     Judge Kozinski dissented, calling the majority opinion a “total mess” and arguing that Garcia had done enough to claim copyright protection and demonstrate irreparable harm.
     “At times, the majority says that Garcia’s performance was not copyrightable at all. And at other times, it seems to say that Garcia just didn’t do enough to gain a copyright in the scene. Either way, the majority is wrong and makes a total mess of copyright law, right here in the Hollywood Circuit. In its haste to take internet service providers off the hook for infringement, the court today robs performers and other creative talent of rights Congress gave them,” Kozinski wrote.
     In a blog post, Electronic Frontier Foundation legal director Corynne McSherry said that the “uproar” in response to the 9th Circuit’s takedown order was “immediate, for good reason.”
     “As we and others explained, the order was a prior restraint of speech, something that should rarely ever happen, and should never happen where the underlying claim is ‘doubtful,'” McSherry wrote, noting that the Copyright Office had later refused to register Garcia’s performance.
     “Google, supported by public interest groups, scholars, service providers and media organizations, asked the court to reconsider the ruling and it finally agreed to do so,” she wrote, adding, “Today’s opinion gets it right.”
     The court also issued an amended order on May 18 denying an en banc rehearing.

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