CDT and seven other free expression advocates have filed a legal brief urging a federal court to reconsider its order taking down the controversial ‘Innocence of Muslims’ video. As we wrote when it was made public in late February, the decision in Garcia v. Google to order the video’s removal on dubious copyright grounds will set a dangerous precedent for online free expression if it is allowed to stand.
The brief to the Ninth Circuit Court of Appeals elaborates on the concerns we raised in our earlier post on the case.
We argue that the opinion failed to adequately consider the public interest and harm to free expression in ordering the takedown. The video has been a unique flashpoint for debates about free expression and the Internet – debates the opinion barely mentions. Instead, the court blithely whisked away any free-expression concerns because “the First Amendment doesn’t protect copyright infringement,” even as it recognized that the copyright claim was in fact “fairly debatable.”
The copyright holding – that actors in a movie could have independent copyright interests in their performances – could wreak havoc when considered in light of the Digital Millennium Copyright Act’s (DMCA) notice-and-takedown system. The DMCA allows anyone with a good-faith belief that his copyright has been infringed to send takedown notices to content hosts. Before Garcia v. Google, actors, technicians, and others contributing to a film but not holding its copyright could make no such claim. Content hosts could confidently disregard notices sent on the basis of, for example, being in a video. Indeed, Cindy Garcia herself only pursued the copyright angle after other claims had failed to get the video taken down. But if Garcia stands, open the floodgates. Any creative contributor to a project, aggrieved for whatever reason, could use the DMCA to attempt to veto its rightful distribution.
Other briefs in support of rehearing have been submitted by major newspapers, Public Citizen, and the California Broadcasters Association. We’re all hoping the judges of the Ninth Circuit recognize the seriousness of what’s at stake and opt to rehear the case.