Google Points Out That Even The Copyright Office Thinks Judge Kozinski's 'Innocence Of Muslims' Ruling Is Wrong

from the that's-not-copyrightable dept

Thu, Mar 13th 2014 10:45am — Mike Masnick

Late last week, the 9th Circuit appeals court asked the various parties to file briefs on whether or not it should reconsider Google's motion for a stay on Judge Alex Kozinski's horrific ruling that an actress, Cindy Lee Garcia, who appeared in approximately 5 seconds of the infamous 13-minute "trailer" of "Innocence of Muslims" had a copyright interest in her performance and could legitimately demand Google remove all copies of the film. Despite the extremely controversial ruling, and the First Amendment implications associated with it, Kozinski almost immediately rejected the motion. However, another judge in the 9th Circuit took it upon him or herself to ask the court to reconsider the question "en banc" (usually meaning all the judges, but in the 9th Circuit, it's a panel of 11). On Wednesday, both sides filed their motions, limited solely to the question of whether or not the court should reconsider the motion for a stay -- but they certainly hint at the arguments that are going to play out as this case goes forward.

Google's brief also includes one rather important new piece of information: after the ruling came out, the Copyright Office rejected Garcia's attempt to register that same copyright.

While this lawsuit was pending, Garcia also was pursuing her copyright on another front. On September 25, 2012, she filed an application with the U.S. Copyright Office in order to comply with 17 U.S.C. § 411(a), which requires such an application as a prerequisite to any copyright infringement suit. On December 18, 2012, however, the Copyright Office wrote to Garcia’s lawyer and informed her that, barring further information from Garcia, Garcia was not entitled to register a copyright.... “For copyright registration purposes, a motion picture is a single integrated work,” it wrote. “Assuming Ms. Garcia’s contribution was limited to her acting performance, we cannot register her performance apart from the motion picture.” ... The Copyright Office informed Garcia’s lawyer that unless she could provide further information about Garcia’s role, her application would be rejected.... Garcia responded by asking the Copyright Office to delay its adjudication of her application until after the panel ruled in this case....

On March 6, 2014, the Copyright Office issued a letter rejecting Garcia’s application.... It explained that “the U.S. Copyright Office * * * views dramatic performances in motion pictures to be only part of the integrated work— the motion picture” and that the Office’s “longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance contained within a motion picture.”.... The Office also explained why it was inappropriate for it to delay its ruling during the pendency of this case. Citing 17 U.S.C. § 411(a), it wrote that “Congress expressly envisioned that registration decisions by the Register of Copyrights would precede adjudication in the courts” so that the courts have the benefit of the Copyright Office’s decision and so that the Office can intervene to defend that decision.... When applicants institute lawsuits prior to the Copyright Office’s decision, it explained, “the Register’s statutory right to intervene in an action instituted pursuant to a refusal to register is nullified.”

While I often disagree with the Copyright Office on things, nearly everyone should at least agree that it tends to lean towards a more copyright maximalist point of view, happy to allow copyrights on nearly everything. For even it to reject the copyright here, and do so forcefully, suggests that Judge Kozinski's ruling is way out of line -- and, at the very least, deserves a more thorough rehearing.

Google goes on to explain why, even without this, the original order should be put on the shelf while the court reconsiders, again making a very compelling argument that Garcia has no copyright interest and no case. I won't rehash the arguments here, but they're worth reading. At the very least, it's difficult to see how anyone (even those who agreed with the original order) can't see how the ruling is controversial, raises serious issues, and deserves to be stayed until the court can make sure this is the result it thinks is appropriate.

Garcia's brief on the other hand, dispenses with careful legal logic, and plays heavily on emotion -- reprinting some of the "death threats" Garcia received for her appearance in the video. While these were, no doubt, distressing to Garcia, that is unrelated to the actual copyright question at play here, and seem designed solely to lead to an emotional reaction, like the one it appears Judge Kozinski had. Even when the filing does delve into making actual legal arguments, they seem questionable. For example, Garcia's lawyer dismisses the idea that appearing in only 5 seconds of the film has any bearing on the copyright question, and even quotes Judge Learned Hand saying: "no plagiarist can excuse the wrong by showing how much of his work he did not pirate." But that's both misleading and not applicable here. This is not an issue of plagiarism. It's a question of copyright infringement, and de minimis use and fair use (where the amount of the work plays a key role) are well established. To pretend that these issues are meaningless is to ignore some rather basic copyright law (though, so is claiming that an actress has a copyright interest in a movie).

Reading through the two motions you get a sense of two very different levels of expertise concerning copyright law. On top of that, a third filing, from lawyer Andrew Bridges representing a bunch of internet companies, including Automattic, Twitter, Facebook, Pinterest and IAC (and indicating more may soon sign on), suggests that a large part of the internet ecosystem is about to weigh in on why Kozinski's ruling is absolutely insane as well. Hopefully, the court at least recognizes that it should rehear the question of whether or not a stay should be granted on the original prior restraint order.

usca9 Google Response (PDF)usca9 Google Response (Text)

Garcia v Google(1) (PDF)Garcia v Google(1) (Text)

Youtube Amicus usca9 (PDF)Youtube Amicus usca9 (Text)

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Filed Under: alex kozinski, cindy garcia, copyright, copyright office, first amendment, innocence of muslims
Companies: automattic, facebook, google, iac, pinterest, twitter, youtube

32 Comments

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Anonymous Coward, 13 Mar 2014 @ 11:03am

If the film was going to contain controversial content then expect resistance and anger. You can't take back decisions like these. It seems obvious that she wanted the money for the job but didn't want the consequences for accepting that job. It is probably now costing her more in court fees then if she didn't take the job to begin with.
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- Anonymous Coward, 13 Mar 2014 @ 11:31am
  
  Re:
  My understanding is that all of the actors involved with this film did not know they were signing up to be part of an anti-Islam film. I'm not agreeing with the ruling though, just pointing out one of the facts of the case.
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  - Lurker Keith, 13 Mar 2014 @ 11:51am
    
    Re: Re:
    I remember something about the lines the actors & actresses had were not the lines that are heard. They were words that physically (mouth movements) approximate what was going to be said in a dub-over.
    
    There is a degree of fraud about how this "movie" was made, but, from what I understand, that fraud wouldn't give rise to new copyright claims; at best I would think it would completely cancel the original copyright (based on US law) & make the work non-copyrightable.
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    - Anonymous Coward, 14 Mar 2014 @ 2:27pm
      
      Re: Re: Re:
      The fraud is relevant to the copyright claim only insofar as it subverts the producer's argument that he had an implied license to use her performance.
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  - Anonymous Coward, 13 Mar 2014 @ 11:59am
    
    Re: Re:
    ... so they say. If true, then the actors have other legal avenues available to them ... but copyright is not one of them.
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  - John Fenderson (profile), 13 Mar 2014 @ 12:20pm
    
    Re: Re:
    Yes, this is well established. It's also totally irrelevant to the copyright claim.
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    - Anonymous Coward, 14 Mar 2014 @ 2:28pm
      
      Re: Re: Re:
      Well, not *totally* irrelevant. It's relevant to the implied license issue.
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- techflaws (profile), 13 Mar 2014 @ 11:40pm
  
  Re:
  It seems obvious that she wanted the money for the job but didn't want the consequences for accepting that job
  
  She probably just didn't expect the number of number of complete and utter nutcases out there.
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ChurchHatesTucker (profile), 13 Mar 2014 @ 11:13am

****ing A
the U.S. Copyright Office * * * views dramatic performances in motion pictures to be only part of the integrated work

I'm going to pretend that there were obscenities that were censored there.
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- Rich, 13 Mar 2014 @ 11:51am
  
  Re: ****ing A
  I assumed it was a pause for jazz hands.
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Ninja (profile), 13 Mar 2014 @ 11:50am

The greatest part of it all? This is all about censoring the video, removing content you don't like and/or is somewhat embarrassing. All this lawsuit accomplished was to Streisand the hell out of it to the point it's more readily available today than if people simply ignored it.

For all purposes the ruling is innocuous. At best.
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Baldaur Regis (profile), 13 Mar 2014 @ 11:51am

The Things You Learn Online!
The panel claimed that its pre-mandate removal order was the only way to �prevent a rush to copy and proliferate the film before Google can comply� with the injunction. That claim is unpersuasive. Google Response, p.12
So, saying 'your claim is unpersuasive' is the polite, lawyerly way to say "You're one crazy motherfucker, and everything that comes out of your crazy piehole is crazy." Who knew?

To the NSA: Your claim of 'because terrorism' is unpersuasive.

To my dog: Your claim of 'the cat made me poop on the rug' is unpersuasive.

To my ex-girlfriend: your claim of 'I'm leaving you because you say the dog talks to you' is unpersuasive.
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- Rich, 13 Mar 2014 @ 11:55am
  
  Re: The Things You Learn Online!
  Well, in your dog's defense, cat are pure evil.
  [ link to this | view in chronology ]
  - Mason Wheeler (profile), 13 Mar 2014 @ 1:09pm
    
    Re: Re: The Things You Learn Online!
    When's the last time you heard of a cat attacking and killing a child with no provocation?
    [ link to this | view in chronology ]
    - John Fenderson (profile), 13 Mar 2014 @ 1:54pm
      
      Re: Re: Re: The Things You Learn Online!
      No, cats just suck the souls out of infants while they're sleeping.
      
      Actually, though, there have been many deaths due to unprovoked cat attacks. There's even a song about the mechanism of the killing: cat scratch fever.
      [ link to this | view in chronology ]
      - Pragmatic, 18 Mar 2014 @ 6:29am
        
        Re: Re: Re: Re: The Things You Learn Online!
        No, cats just suck the souls out of infants while they're sleeping.
        
        Not according to Stephen King. They just get the blame for what the goblins do.
        
        I'll stop now. /Cat lover
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    - Anonymous Coward, 13 Mar 2014 @ 2:02pm
      
      Re: Re: Re: The Things You Learn Online!
      That just means they're good at covering up their criminal behavior. Which further justifies the evil label.
      [ link to this | view in chronology ]
Anonymous Coward, 13 Mar 2014 @ 12:31pm

"While I often disagree with the Copyright Office on things, nearly everyone should at least agree that it tends to lean towards a more copyright maximalist point of view, happy to allow copyrights on nearly everything."

I don't think that's really true. For example, the Copyright Office will generally reject registrations on words or short phrases, while Courts have held that such works can be subject to copyright protection if they are the result of the requisite originality.
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Anonymous Coward, 13 Mar 2014 @ 12:33pm

For the record, though I have defended much of Kozinski's ruling, I think the Copyright Office is right on this front. The Ninth Circuit's precedent (prior to this case) on joint works in the film context is problematic.

Rather than a *separate* copyright, the plaintiff should have been held a joint author of the film (not because that's a *good* result, but because that's the result that the statute calls for).
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- That One Guy (profile), 13 Mar 2014 @ 2:11pm
  
  Re:
  If she has no valid copyright claim to the short part she actually appears in, why would she deserve joint authorship rights over the entire film?
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  - Anonymous Coward, 13 Mar 2014 @ 6:29pm
    
    Re: Re:
    Because she and the others working on the film intended that her contribution and their contributions be merged into interdependent parts of the whole, and that's how the Copyright Act defines a joint work.
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    - That One Guy (profile), 13 Mar 2014 @ 9:20pm
      
      Re: Re: Re:
      ...her contribution and their contributions be merged into interdependent parts of the whole
      
      How is that any different than any other actor in any other movie or film? Unless all of them are also considered to hold joint authorship over the films they're starring in, I don't see why this case is so special.
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      - Anonymous Coward, 14 Mar 2014 @ 11:55am
        
        Re: Re: Re: Re:
        Because most actors sign a work made for hire agreement.
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Anonymous Coward, 13 Mar 2014 @ 1:27pm

Looking at the ruling you would almost think that the film upset the judges sensibilities.
/conspiracy theory
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Anonymous Coward, 13 Mar 2014 @ 2:21pm

Where is proof of IRREPARARBLE harm here, which is necessary for an injunction? Let alone standing to make a claim.

Looks like the whole case is about Kozinski own ego.
That is why we need mechanism for removal of corrupt judges. And separating them from cozy pensions for damaging judicial system.
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Michael Risch, 13 Mar 2014 @ 2:49pm

Eh.
The Copyright Office rejected the registration on Breakout as well. It will do what the courts say, and this issue just hasn't come up. Thus, I don't see the rejection as telling of anything (though she surely doesn't have an interest in the whole movie-if that's the basis for rejection, it's an easy fix - she can just claim the footage shot that day, which was copied without permission into the movie).

I also think your assessment of the different levels of skill with copyright is based in large part on your priors. I suspect that there are many people who know a lot about copyright law who think that Garcia's brief was just fine.
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Digitari, 13 Mar 2014 @ 4:29pm

if it's a question of fruad
Does this mean George C. Scott's estate can on own Dr, Strangelove? Because Stanley Kubrick sure defrauded Georges performance to the point he said he would Never work with him again..http://en.wikipedia.org/wiki/Dr._Strangelove
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Anonymous, 13 Mar 2014 @ 4:51pm

The American people have either got to get the guts to stand up and say, "Screw what the courts and judges say! We will not let them dictate to us!", or continue to live in ever-increasing tyranny. And it seems the people love the tyranny.
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- Pragmatic, 18 Mar 2014 @ 6:31am
  
  Re:
  Those of us who believe in the rule of law disagree on the grounds that anarchy inevitably leads to tyranny. See every revolution ever for details.
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Mike, 13 Mar 2014 @ 4:58pm

What she should have done is sue for fraud and defamation (for dubbing words into someone's performance to make it appear that *they* made inciting remarks).

She would have won that, then she could have seized the copyright along with the film maker's other assets. THEN she could have shut the movie down.
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Michael Risch, 14 Mar 2014 @ 3:57pm

Stay denied.
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ChrisH (profile), 20 Mar 2014 @ 4:34pm

Good article except for one thing. There is no long established "de minimis" defense in copyright cases. The Sixth Circuit rejected it in Bridgeport Music, Inc. v. Dimension Films and the others have yet to consider it.
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