Tuesday, March 18, 2014
A recent ruling by the 9th Circuit is causing quite a stir in certain online circles. The decision concerned the controversial video "Innocence of Muslims" which was posted to YouTube and sparked worldwide outrage and protests. Cindy Garcia is an actress who was Borat'd into appearing in the anti-Muslim film. She sued Google seeking to get it removed. She claimed that she had a copyright interest in her performance. The Ninth Circuit ruled in her favor and in so doing, released the wrath of the bloggerati. While the ultimate outcome is still unclear since Google is going to fight this one, all of this might have been avoided if the producers had signed a contract with Garcia. (I say "might" because it would depend upon how the release was drafted and whether she was fraudulently induced to sign it). While the Borat plaintiffs had all signed extensive releases giving up every right under the sun, no such release was produced documenting that Garcia had done the same.
I think this case is not actually the dangerous precedent some might have us think. Kozinski is nobody's fool, including Google's, and thankfully, he has a strong record as a First Amendment stalwart so all Google's self-serving rhetoric about unconstitutional prior restraint didn't intimidate him. Neither should all the alarmism about YouTube being inundated by requests to takedown clips or the dire warnings of the imminent demise of the online entertainment industry. In my view, this is just plain hysteria and not uncommon in certain corners when one dares suggest curbing some of the special rules granted to Internet companies. [Speaking of special rules for online companies, there's one other issue here that's relevant, and that's Section 230 of the Communications Decency Act. That's a federal law that protects websites from state law liability for content posted by others. That's likely why Garcia sued on a copyright infringement claim as opposed to, say, false light or some other tort claim]. The fact is that most (legitimate) filmmakers have their actors execute written assignments prior to filming. The "copyright in performance" argument only works if the subjects actively participated in the creation of the work so it would not include, for example, subjects who were captured on film without their knowledge or who did not "perform". So what's left? Subjects who actively participated in their performance and did so without a written assignment (or where the written assignment was obtained through fraud) but later - for whatever reason - wanted his or her performance removed from YouTube or another online site.
Now let's think about that a minute. Most people will not ask for clips to be removed unless they feel there is something invasive or embarrassing about their appearance in it. (Revenge porn victims come to mind and Prof. Derek Bambauer has already proposed using copyright to address it). In that case, why not remove it? Given the unforgiving nature of the Internet and the possibility of humiliation or worse on a mass scale, it seems that Google should exercise the caution of taking down the clip and allowing the parties to resolve their rights in court. If the clip stays up while the case is being litigated, well, the harm is done regardless of who ultimately wins in court.
This case is a good one to illustrate the irreparable harm concept. The posting of the clip resulted in threats to Garcia's life. Given the hate (aka fatwa, threats against her life) Garcia was feeling after the clip appeared, the deception involved in getting her to participate (and the fact that part of her performance was dubbed over so it appeared that she was speaking "fighting words" that she never uttered), the ability of the filmmakers to post the clip without her brief appearance (yes, video editing tools are available....), the inability of Garcia to have the clip removed on other grounds because of Section 230 of the CDA and - of most relevance to readers of this blog - the fact that the filmmakers might have avoided this whole mess by having her sign a release and explaining to her the true nature of the film -- given all that, I, unlike many in the blogosphere, applaud the decision.
We're not talking about a common situation here so all the hysteria about the death of Youtube is greatly exaggerated. Nobody is killing the Internet here. Google will still be a multi-billion dollar company that scans our emails and chips away at our privacy while pretending to guard our "free speech." Nothing will change much. As Kozinski writes, "It is not irrelevant that the harm Garcia complains of is death or serious bodly harm." Furthermore, as the opinion notes, the filmmaker "lied to Garcia about the project in which she was participating. Her performance was used in a way that she found abhorrent and her appearance in the film subjected her to threats of physical harm and even death. Despites these harms, and despite Garcia's viable copyright claim, Google refused to remove the film from YouTube. It's hard to see how Google can defend its refusal on equitable grounds, and indeed, it doesn't really try." Bravo Kozinski, for not being bullied by the almighty Google and for standing firm on a case that was sure to attract the wrath of the Internet yahoos.