Cindy Garcia Still Attacking YouTube Over Innocence Of Muslims Film

from the the-striesanding-continues dept

Fri, Oct 19th 2012 2:41pm — Timothy Geigner

Cindy Garcia apparently doesn't know when to stop. Perhaps more entertainingly, her legal team apparently was lifted out of some kind of law-driven sitcom. If you'll recall, we last heard from Garcia when she decided that she owned the dramatic performance (oh lord) she provided for the controversial film "Innocence Of Muslims." Armed with this unilateral declaration which deftly ignores precedent, such as Aalmuhammed v. Lee, she then attempted to get the film taken down from YouTube, ostensibly to win some kind of cat-is-already-out-of-the-bag-move championship that I'm not aware exists. All the while, her previously mentioned legal team offered up evidence that they fail to have a basic understanding of the first amendment by saying, "the First Amendment does protect American’s [sic] rights to freedom to express, and also the right to be free from expression."

"This guy totally gets us."
Well, Garcia and her team are back for more, and now they appear to think that YouTube is responsible for identifying the copyright holder of the film in question. The story reportedly goes something like this. Garcia phones up the attorney for Nakoula Basseley Nakoula (or whatever his name is this week) about a settlement offer and said attorney tells Garcia that she needs to contact the holder of the copyright on the film, which is not Nakoula (I have no idea if this is true). Then her lawyers emailed Timothy Alger, an outside consultant for Google.

"I have just been informed by Nakoula's attorney that Nakoula...DOES NOT OWN the rights to the film and will not claim copyright ownership on the rights to the film," Armenta wrote. "We believe it is YouTube's burden to identify the correct copyright holder, in light of Garcia's allegations that she owns the rights to her dramatic performance."

I can't imagine why YouTube should have the burden of copyright ownership discovery. How would they even go about doing that? In any case, Garcia's lawyers are citing the Viacom lawsuit against YouTube to put their handling of DMCA takedown requests in the spotlight. But there's a problem with such a citation, in that Google's position during the trial went in exactly the opposite direction on the question of copyright ownership being determined.

During the appeal in the Viacom case, Google's lawyers argued forcefully for a strict knowledge standard in determining an ISP's copyright liability. Google wanted copyright holders like Viacom to bear the burden of sending takedown notices because they were in the best position to determine what is infringing and what is not. "There's no central depository of copyrights," said Google's lawyer during the appellate hearing.

What Garcia's lawyers are attempting to do is to show that YouTube has been willing in the past to be quick with their takedown trigger fingers and are not responding similarly in this case. The difference, of course, is that Garcia is claiming ownership on something in which the law is, if I want to be extremely generous to Garcia's lawyers, ambiguous. To be less generous, the caselaw I referenced earlier determined that Garcia does not have any takedown rights over her performance, which is why YouTube is refusing to take the film down. And, as a California judge did once already, another judge has refused to issue an injunction to remove the film. In fact, that judge mentioned what I've been saying since Garcia first started her arm-waiving:

But on Thursday, the judge denied her request for a temporary restraining order, citing the fact that the alleged infringement commenced almost three months ago.

Where was Garcia and her team of kinda-lawyers when this film was first released? It was out for months before the controversy began and the fatwas were issued. If this was an infringement on her performance, why was it only after the media picked this story up that such infringement was alleged by Garcia?

The only logical answer is that until the negative press began, Garcia didn't care. Which means she's using DMCA notices, not because of any legitimate copyright claim, but rather in an attempt to stifle free speech.

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Filed Under: cindy garcia, copyright, free speech, innocence of muslims, youtube
Companies: google

16 Comments

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Anonymous Coward, 19 Oct 2012 @ 2:45pm

Its because she doesn't like her depiction. This is just dumb and a waste of our American money for this BS.
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wallow-T, 19 Oct 2012 @ 2:58pm

To be fair to Ms. Garcia, she has a reasonable fear that she may be physically attacked, maimed or killed by someone who is theologically offended by this crappy little film.

In other cases - the Japanese translator of "The Satanic Verses," the Swedish cartoonist Lars Vileks attacked, the French publisher firebombed - these people knew what they were doing and accepted the risk. Ms. Garcia says she had no idea how her performance was to be used and I can understand her blind panic.
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Anonymous Coward, 19 Oct 2012 @ 2:58pm

I submit she justs wants attention.
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Vidiot (profile), 19 Oct 2012 @ 3:20pm

Help is available
If the copyrighted performance angle isn't working for her, she should contact Cracked... they'll tell her how to get it trademarked. Or patented. Or something.
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DCX2, 19 Oct 2012 @ 3:23pm

Misrepresentation?
Sure, it may have been out for months, but did she know? Was she notified by the producer when it was released? I think that unless you can prove she knew about it months ago, this is a weak argument.

You also have to remember that her lines were dubbed over. As far as she knew, whenever the film would be released, it wasn't going to be some anti-Muslim propaganda.
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Rikuo (profile), 19 Oct 2012 @ 3:31pm

Re: Misrepresentation?
Emm...she's an actress in it? If I was starring in a movie, I'd keep myself informed as to the release date.
And what does dubbing over lines have to do with the (non-existent) copyright claims?
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ldne, 19 Oct 2012 @ 4:17pm

Re:
Then maybe she shouldn't have signed the standard release? Also, no matter what she does she won't be able to placate the nuts anyway.
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John Fenderson (profile), 19 Oct 2012 @ 4:18pm

Re:
Whether or not such a fear is reasonable, there is no action YouTube could take now that will lessen the risk. In addition to that, such a risk in no way impacts YouTube's legal responsibilities in this matter.
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AmyCat (profile), 19 Oct 2012 @ 6:20pm

Re: Re: Misrepresentation?
The movie for which she acted was NOT "released"; instead, the bigots in charge re-edited it to put in racist and anti-muslim dialog WHICH THE ORIGINAL ACTORS HADN'T SPOKEN.

I don't think copyright law is necessarily the proper vehicle for the actors' efforts to take down the YouTube video, but they should have SOME recourse. This isn't some fangirl making a music video of their favorite actors, it's setting up the actors to look like they support hate-speech, and as others have pointed out, it's putting their lives at risk.

If someone re-dubbed video they'd taken of, say, an interview with Brad Pitt or Harrison Ford, and made them appear to be spouting neo-Nazi slogans, this would NOT be allowable use, even if the person doing the dubbing owned all the rights to the original video. Difference is, if someone did this to a "big name" star, YouTube wouldn't dare fight to keep the video up. Just because the actors involved in this thing are struggling unknowns and probably not very good doesn't mean it's LEGAL to do to them something you wouldn't do to someone with "industry clout".
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G Thompson (profile), 19 Oct 2012 @ 8:30pm

Re:
And what does that fear, whether reasonable or not - and I'd posit it would be unreasonable at instance of the release - have to do with her current claims of copyright infringement to something she has absolute no claim in whatsoever and butthurtness?

If she wants to claim for fear or unconscionable actions on behalf of the film director/owner/whatever then do so but this is just an exercise in publicity at the minimum and personally I think she needs to be SPLAP'ed and hard!
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Anonymous Coward, 19 Oct 2012 @ 9:01pm

Re: Re: Re: Misrepresentation?
Most actors have no say how a movie is edited. This piece of crap is surely inflammatory and very sucky but still...she did get a pay day.
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Cindy Garcia, 20 Oct 2012 @ 1:03am

Innoncence of Muslims
To all you people out there why don't you get it, Those are not Cindy Garcia's words, someone put words over my mouth to make me look like a bigot and I am not. Also that is not freedom of speech, that is hate speech. I have every right to stand up for myself. I am not a coward hiding in the closet. And when it first came out I did not see it, I was expecting to see a film called Dessert Warrior, which never showed up anywhere. That was the film I signed on to do.Also none of the other scenes were filmed while I was on set, it was a completely different film. No words were mentioned of Muslim of Mohammad and there were no sex scenes just sword fighting and my role as a mother, nothing like what was but into that clip, watch it, my mouth is saying something different than what is coming out of it.
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Anonymous Coward, 20 Oct 2012 @ 7:16am

Re: Innoncence of Muslims
Be that as it may, trying to DMCA the content that you do not hold the rights to is against the law. If you have this big an issue with it, then sue. There is your recourse. Trying to bend the law to your will is a sad, and often dangerous, ploy. So far you aren't standing up for yourself so much as looking like a spoiled brat who was tricked somewhere in her contract.
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Anonymous Coward, 20 Oct 2012 @ 12:08pm

Re: Innoncence of Muslims
You are an actor.You were hired to portray a character in a film, to say words that were not your own.You were paid to do so.You signed a release form.You have no say in the look or feel of the final product.It is not your place to make decisions as to when or where or how the film is presented to the public or if it ever is.
Lots of well know actors have portrayed villainous and vile characters to betterment of their careers.

You are an actor...it's time you started acting like one.
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orbitalinsertion (profile), 20 Oct 2012 @ 12:48pm

Re: Innoncence of Muslims
We do get it. If you want to bring suit against the movie producers and copyright holder, you are free to do so. You have no need to involve any content platform to do your work for you. Your attorneys could have found out by now who the copyright holder is if they weren't wasting their time with improper actions against YouTube. You have no copyright claim and and there is no infringement issue, so DMCA takedown in this matter is not just wrong, it is illegal.
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Anonymous Coward, 22 Oct 2012 @ 6:27am

Help keep the government hands off the internet! Vote Libertarian if after you do your research you agree. It wouldn't hurt to "Like" him on facebook either. Thank you

http://www.garyjohnson2012.com/issues/internet-and-technology
https://www.facebook.com/govgaryj ohnson
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