Google says death threats don't trump copyright law on YouTube
LOS ANGELES - An actress who says she got death threats over a performance used in an anti-Islam YouTube clip has made enemies of Google and Hollywood, which say her bid to erase it from the Internet is making "Swiss cheese" of U.S. copyright law.
The owner of the world's largest search engine, the California Broadcasters Association and the American Civil Liberties Union all foresee dire consequences if a U.S. appeals court doesn't overturn a first-of-its-kind ruling giving actress Cindy Lee Garcia a copyright interest in her performance.
"This decision has a real negative impact on two of the biggest industries in California, Hollywood and the Internet," Alex Lawrence, an intellectual property lawyer with Morrison & Foerster LLP in New York, said in an interview. "That's why you're seeing this outcry."
Google is trying to undo a February ruling by a three-judge panel of the U.S. Court of Appeals that concluded Garcia's intellectual property interest in "Innocence of Muslims" gave her the right to seek removal of a 14-minute trailer for the film posted on Google's YouTube.
Garcia claimed she was tricked after being told she would be in a film called "Desert Warrior," and that her performance was dubbed over in the resulting YouTube clip. She said she received death threats amid global controversy over "Innocence of Muslims," in which she appeared to be asking whether the Prophet Muhammad is a child molester.
The video clip, which shows a fictional attack by Muslims on a Christian family, sparked riots in Muslim countries, and an Egyptian cleric issued a fatwa calling for everyone involved in the film to be killed. Protests over the video were initially linked by U.S. officials to the attack on the U.S. consulate in Benghazi, Libya, that killed four Americans, including the ambassador.
A hearing to reconsider Garcia's victory is scheduled Monday before an 11-judge panel in Pasadena, California. So- called en banc review is typically reserved for cases the appellate court finds particularly significant.
In the court's 2-to-1 February ruling, U.S. Circuit Judge Alex Kozinski said the dispute was over an "extraordinarily rare case" in which a filmmaker had exceeded the bounds of the performer's implied license.
Lawrence, who isn't involved in the case, said the appeals court acted out of sympathy with the victimized actress and misapplied copyright law to fill a gap in legal remedies available in the U.S., which doesn't have an equivalent to the European Union's right-to-be-forgotten protection for people to have data about themselves removed from the Internet.
The California Broadcasters Association said that if the February ruling stands, it will open the floodgates to demands by minor players in movies for the removal of their performances from the Internet.
"Absent clarification, the decision creates confusion over the scope of copyright protection and threatens to dramatically increase meritless copyright litigation initiated by performers, however minuscule their contributions to the copyrighted work," the trade group said in a court filing.
Separately, the San Francisco-based Electronic Frontier Foundation and the ACLU said ordering Google to take down the YouTube clip, which sparked riots in the Middle East, ignores the public interest in being able to watch a video at the center of "roiling political debate."
"Whatever may be said about the merits of 'Innocence of Muslims,' it has unquestionably become part of the historical record," the public interest groups said in their court filing.
Google, based in Mountain View, California, said in its March request for a new hearing that the U.S. Copyright Office had refused to register Garcia's purported copyright because it was contrary to the agency's "long-standing practices."
Under the court's ruling, "everyone from extras to backup dancers could control how, and whether, films get distributed," Google said in a court filing. "And platforms like YouTube would be caught in the middle, forced to adjudicate endless takedown requests."
Cris Armenta, a lawyer for Garcia, last month welcomed further review of the case.
"We look forward to continuing to advance Ms. Garcia's copyright interests, her right to be free from death threats, and her First Amendment right to be disassociated from hateful speech which she did not utter nor condone," Armenta said in an email.
Garcia sued Google in the 2012 after it refused her request to take down the "Innocence of Muslims" video under the Digital Millennium Copyright Act.
Another actor who said he was tricked into playing a role in the movie sued the filmmaker and Google in September in federal court in Los Angeles