US Court Fumbles First Amendment, Orders Global Takedown of ‘Innocence of Muslims’

Written by Andrew McDiarmid

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.

In ordering the takedown in this case, the court failed to give adequate weight to the free expression interests at stake. Indeed, the court barely addressed free expression at all, despite the fact that the video has been the subject of extensive international debate about free expression online. Since ‘Innocence of Muslims’ was posted in September 2012, people around the world have debated the video’s expressive merit and place in cultural debate, as well the proper role and responsibility of YouTube as the host of the video. Several courts in different countries ordered YouTube to render the video inaccessible in their countries because it violated local content laws. YouTube also voluntarily restricted access to the video in several countries when it was linked to violent protests, and all of YouTube was blocked in Pakistan when it refused to take the video down. Many free-expression advocates, on the other hand, argued that regardless of the video’s own (perhaps questionable) expressive merit, the very fact that it was the focal point for so much public debate provided an important free-expression reason for it to remain viewable.

In short, this video and the prospect of censoring it have been major flashpoints in the debate over online free expression. Yet yesterday’s opinion dismissed these concerns with a single sentence, stating that “the First Amendment doesn’t protect copyright infringement.” While that may be true, this isn’t straightforward wholesale piracy. The novel copyright claim here pertains to only 5 seconds of the overall video, which appears to be otherwise non-infringing. At this stage of the case, when actual infringement has not been conclusively determined, the court should have weighed the very real free-expression implications from blocking the entire video against Garcia’s interest in halting the dissemination of her performance in the video. From reading the opinion, you’d hardly know that blocking the video on a worldwide basis raises any free-expression issues at all. Moreover, according to Google’s emergency motion to stay the order, the injunction is far broader than even what the plaintiff sought. The court issued a vague instruction that Google “take down all copies of ‘Innocence of Muslims’” without specifying which of the 58,000 videos related to “Innocence of Muslims” it considers to be in the scope of this order. The order also requires YouTube to prevent anyone from uploading the video in the future, a kind of ‘take down and stay down’ remedy that raises bigger policy questions.

The precedent this decision sets is incredibly worrisome. Based on this ruling, anyone who contributes creative expression to a larger copyrighted work potentially may have an independent copyright claim against the work’s distribution and performance. In the case of a movie, for example, adjudicating these claims would require careful case-by-case examination of the contract, written or oral, between each bit player and the moviemakers. Beyond that, moreover, the notion that an individual actor may have a copyright interest in her performance poses huge problems in the context of the DMCA’s notice-and-takedown provisions.

Platforms such as YouTube, which have robust processes in place to respond to demands from movie studios and other major copyright holders, could face multiple conflicting demands for a given video. DMCA takedown notices from frustrated bit players, which last week would have been easily ignored as not coming from the copyright holder for the work, might now be honored for fear of litigation. While such claims may only rarely hold up in court (the opinion states that this situation will be extremely rare), the incentive structure of the DMCA is such that this decision could nonetheless put online content platforms in the impossible position of trying to assess which of the actors in a given video might have a colorable copyright claim and forcing platforms to overreact and take down many legitimate works. Platforms with Google-level resources might be willing and able to fight spurious claims in court, but smaller content hosts who can’t afford to get sued risk being pressured to take down content by any heckler.

The instruction that Google must monitor uploads to all its platforms (not just YouTube) to prevent the video’s reappearance raises additional problems. Injunctions to stop infringement and prevent future infringement have long been available in copyright cases. But broad monitoring obligations can dramatically raise the costs of operating online content platforms, resulting in a significant decrease in avenues and opportunities for user-generated content and self-expression online. It’s a troublesome road to go down.

Google has petitioned for the case to be reheard by the full Ninth Circuit. We urge the court to reconsider and withdraw this flawed opinion that jeopardizes freedom of expression online and the innovative platforms that support it.

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