A troubling copyright ruling from the federal Court of Appeals for the 9th Circuit will have lasting repercussions for online free expression if it is not reconsidered. Yesterday, the appeals court released an order, issued under gag last week, that compels Google to take down all copies of the controversial “Innocence of Muslims” video. The order – called a preliminary injunction, because it is issued even before the plaintiff proves her case – also requires Google to take “all reasonable steps” to prevent future uploads of the video.
In the accompanying opinion, the court held that Cindy Lee Garcia, an actress whose appearance in the video was obtained under false pretenses from its producer, had an independent copyright interest in her performance, distinct from any copyright in the video. To many copyright experts, the court’s holding that an actress has an independent copyright interest in her performance in a film is absurd and would cause chaos in the production of movies and recordings. More on that below.
In addition to the flaws in the court’s analysis of who could claim copyright interests in a film, the court also failed to give adequate weight to the free expression interests at stake. In determining whether a preliminary injunction should be issued to order a platform such as YouTube to take down a possibly illegal item, courts need to fully consider the public interest, which surely includes the public interest in viewing controversial material.
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