Innocence Of Muslims Actress Files Contempt Charges Against Google For Not Making Movie Completely Disappear Worldwide
from the well,-if-you've-already-fucked-up-copyright-law-in-one-way... dept
It would appear that actress Cindy Lee Garcia and her lawyer Chris Armenta are figuring that since they've already mucked up copyright law with their ridiculous victory in the 9th Circuit that they might as well go on pushing the boundaries of copyright law to further ridiculous extremes. If you don't recall, the 9th Circuit, via Judge Alex Kozinski found the actress had a magical "copyright interest" in the 5 seconds of Innocence of Muslims 13-minute trailer that she appeared in, allowing her to demand that Google takedown every copy of the video. Multiple copyright experts were flabbergasted at this ruling, and a variety of folks have been lining up to support future proceedings in the case (starting with a possible en banc review of whether or not the court should grant a stay on the ruling until even more review can occur).In the midst of this, Garcia has filed a motion for contempt against YouTube and Google arguing that the company has failed to abide by the takedown order. However, as the details show, Garcia and Armenta are applying some rather questionable interpretations of copyright law yet again -- though they're interpretations helped along by a bunch of additional problems with Kozinski's order (problems that were mostly ignored given the immensity of the ridiculousness of the key parts of the original order). It seems that their main complaint is that Google only blocked the videos for people in the US. That is, if you visit a foreign version of YouTube, you can still see the clips. That may be true, but it's hard to see how that's contempt. US copyright law only applies in the US. The US court can't realistically order Google to remove the video in other countries, since US courts don't have jurisdiction there. Imagine the flip side: if a court in, say, China, ruled that Google had to block a certain video -- and then found Google in contempt for not blocking viewers in the US from accessing that content. Most people would flip out.
But Garcia and her lawyer seem to think that a single copyright ruling in the US is grounds for worldwide censorship. That's fairly incredible. Though, once again, Judge Kozinski is largely to blame here, as his order certainly could be read to suggest (clearly incorrectly) that he has the power to censor the content globally.
Google has failed to comply. As of this morning, at 7:55 a.m EST, a version of Innocence of Muslims that includes Ms. Garcia's performance is still available on Google's Worldwide Platform and also viewable in Egypt, the nation in which the fatwa was issued for Ms. Garcia's execution. All a viewer needs to do to view a copy of the video that contains the infringing material from any computer in the world and within in YouTube's global platforms--and therefore is governed by the takedown order--is to change his or her settings to any country platform, such as "Egypt."That's not the only problem with the motion. It also seems to completely ignore existing rulings (such as in the Viacom case) that state that in issuing takedowns, you need to point to the specific instance of infringement, rather than just "make all of this disappear." That's quite reasonable, because content itself is not infringing absent context. There may be perfectly valid versions of the content that are fair use -- especially given the news interest in this particular ruling. But Garcia is insisting that Google has to proactively police all copies and block them -- again, thanks in part to Kozinski's overly broad language in his order that implies a duty to police this issue, despite the law not saying that at all.
Furthermore, the DMCA's 512(j) itself says that injunctions granted under it can only apply to "a particular online site," rather than some sort of global ban across every site in every locale. Kozinski, once again, seems to have gone beyond what the law allows in his weird quixotic quest to twist copyright law into something it is not.
For Google, it is a pedestrian, technical exercise to take down those URLs, to hire an intern to just search for "Innocence of Muslims," and their suggestion that Ms. Garcia should comb through YouTube again, and provide Google with the information again, belies Google's claim that it is in compliance.While Kozinski seems to ignore this, the DMCA has never had a forward-looking duty to monitor and block all instances of a particular piece of content. It appears that Garcia and her lawyer are trying to simply make up new law here. As we noted just recently, there are some efforts underway to change the DMCA from a "notice and takedown" provision to "notice and staydown" but that's simply not the law today, no matter what Kozinski thinks it is.
The motion goes even further, insisting that the only way to comply with a takedown notice is to completely remove the file from the server, rather than just disable it from being viewable:
Additionally, as of the writing of this brief, Google has not "taken down" anything. Instead, it has merely disabled the various uploads displaying Innocence of Muslims in forms that contain infringing content, leaving the content up and viewable via thumbnails.Of course, the actual law says that upon notification a company only needs to "remove, or disable access to, the material." Once again, it seems that this is another problem with Kozinski's overly broad order, which declared that Google had to "takedown" the content, rather than just disable it, even as the law has said disabling it should be sufficient.
Furthermore, the motion seems to suggest that Google has a further duty (not even discussed in Kozinski's order) to somehow block Google's search engine from ever pointing to the video anywhere else in the world.
Google has failed to remove full copies of the video from its platforms, has failed to prevent new uploads of the video to YouTube, and continues to publish on its Google search index platforms links to numerous sites and platforms where the video can either be directly viewed or where it can be easily downloaded and saved to viewers' computers.So now they want to censor Google search results to other sites as well? Yikes.
Garcia also complains about the "snide" error message placed on copies of the video that were disabled.
Indeed, Google has not even made a pro forma attempt to comply with the order, choosing instead to temporarily disable only a few copies of the video that contain infringing content and putting in their place a snide message to the public that states:Of course, all of Google's responses so far do not seem like "contempt" or "thumbing its nose," but rather following through with the exactly what the law says is proper. Disabling access to the known videos in the US. This is the same way that Google responds to legal takedowns in other countries as well -- disabling it for those countries only. And, yes, Kozinski's order could be read to demand further actions, including fulling taking down all such videos, even those outside the US, but those are just additional problems with Kozinski's order, which go way beyond what the law says. Everyone has reasonably focused on the ridiculousness of the original claim of giving Garcia a copyright interest in the film, and to a lesser extent the First Amendment-defying gag order he placed on Google. But, the details of this contempt motion highlight that Kozinski got a lot of the little things completely wrong as well, such as ordering Google to go way beyond what copyright law requires."This video is no longer available due to a copyright claim by an actress over her 5-second appearance in the video. A U.S. court has ordered Google to remove the video. We strongly disagree with this copyright ruling and will fight it."As is clear from Google's near-total disregard of the order and its ridiculing of the Court's authority, Google is thumbing its nose at the Court and making a mockery of our judicial system in an apparent attempt to encourage the public to blame and harass Ms. Garcia and to continue to use infringing content to generate YouTube revenues from traffic directed through the 852 URLs that have illegally posted the content.
This is a bad case on so many levels, but it could be even more ridiculous if these kinds of precedents by Kozinski's blatant misreading of the law are allowed to stand. The dangerous precedents go beyond just allowing an actor in a film to claim a copyright on the film, but further allowing bogus "worldwide" injunctions and a requirement to completely "take down" content, rather than just disable access to it (which creates a whole host of other problems). Once again, it seems abundantly clear that Kozinski simply went off the reservation with his ruling, ignoring what the law actually says to satisfy his own desire to censor this video.
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Filed Under: alex kozinski, censorship, cindy garcia, cindy lee garcia, contempt, copyright, dmca, injunctions, innocence of muslims, jurisdiction, takedowns
Companies: google, youtube
Reader Comments
The First Word
“No, actually. I'm highly critical of Google when appropriate as well. What I am greatly enamored by is important free speech issues and avoiding bogus censorship through copyright law. Given your employer, I can see how you're not so interested in those issues, and prefer to brush them under the rug.
None of this is new law.
A huge number of amici filings in the case suggest you're completely wrong.
This case represents the rare convergence of a producer's failure to obtain a work-for-hire agreement or waiver and assignment of an actor's intellectual property rights - standard operating procedure in Hollywood for decades, and the producer's gross fraud in obtaining the actor's performance, invalidating the implied license in a joint creative work.
That is one aspect of the case, but as many others have noted -- *including* the US Copyright Office -- that still does not grant the actress a copyright interest in the film. Do you think the Copyright Office made its decision because it, too, is "greatly enamored with Google"?
This is not about freedom of speech.
Then you do not seem to understand the fundamental legal questions being asked.
It's about Google making a conscious decision to obtain the viral worldwide exposure and ad revenue from a video that went hugely viral overnight with hundreds of copies uploaded to hundreds of YouTube channels. That is YouTube's revenue model. It's about money and business.
Bullshit. The revenue from this particular video is nothing. As far as I know, the video itself wasn't even monetized. Furthermore, Google has a reputation of being *exceedingly* quick to pull down videos when it receives copyright claims on them. If what you claimed was true, it would not be doing so.
So, no, you're wrong. Very, very wrong.
You also might want to admit that you're actually the biased party here, seeing as you are the censorship company that Ms. Garcia hired to bitch about copies of the video that are not subject to US law in the first place. It's your name that's in the emails in the filing.
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Didn't even...
Granted, they had different reasons, but still, when you have members of the Copyfraud Alliance saying it's a bad ruling and everyone ELSE saying it's a bad ruling...
It's probably a bad ruling.
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Hope She Wins!
Can't beat'em, join'em!
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Re: Hope She Wins!
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She fails to understand the scale of Google, from her viewpoint there is only one complaint that Google has to deal with, From Google's viewpoint there are millions, and so it is no a pedestrian exercise to hire an interns to deal with complaints, that is why they rely on automation, and are not very responsive to counterclaims. They cannot afford to high enough people with the necessary expertise to deal with complaints about Youtube videos, never mind all their search results..
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It doesn't matter. She has a lawyer, to whom we should all be grateful for the spectacle unfolding. Billable hours is what it's about.
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It seems to much like a Hollywood ploy and they've run done crazy schemes in the past when it comes to changing the law for their own proposes...
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Chances are this is also your stereotypical ambulance chasing type lawyer, which are more about annoying people to the point they end up settling rather than on any real legal skill. You know, like Prenda or that guy that went after The Oatmeal.
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This matches closer of having the one making a DMCA claim providing which specific works to remove, as it should be, rather than making Google do all the work.
Mind you, since it's silly to think that the actress could make a copyright claim in the first place, even if she did do this, all the DMCA claims made would be invalid anyway.
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Someone needs to go tell ICE about this ...
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This is not about freedom of speech. It's about Google making a conscious decision to obtain the viral worldwide exposure and ad revenue from a video that went hugely viral overnight with hundreds of copies uploaded to hundreds of YouTube channels. That is YouTube's revenue model. It's about money and business.
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Oh, wait: one just did.
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"a producer's failure to obtain a work-for-hire agreement"
Why is that Google's fault if the producer has supplied a product with contract issues they did not have any access to see? Are you saying that companies now have to vet every single product's contract history before they offer it?
"Google making a conscious decision obtain the viral worldwide exposure and ad revenue from a video that went hugely viral"
Even this fragment of a sentence is full of idiocy. Where to start... First of all, Google didn't make a "concious decision" to do anything. They provided a platform, available to anyone equally for both popular and unpopular content. The only people who made any concious decision here are the individuals who uploaded the video. You also seem to be implying that someone can deliberately make something go viral and thus make huge amounts of money. You might have to patent that method, as nobody else knows for sure what will go viral until after the fact. I do also have to giggle a little at the idea that YouTube needs "exposure" from a video like this, rather than them being the ones providing the exposure.
"It's about money and business."
Yes, it's about a producer who tried to make money with a controversial video and apparently didn't have his business in order when working out the contracts. Again, why is this Google's fault?
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"This is not about freedom of speech. It's about Google making a conscious decision to obtain the viral worldwide exposure and ad revenue from a video that went hugely viral overnight with hundreds of copies uploaded to hundreds of YouTube channels."
And how is that not a freedom of speech issue?
Now, to be clear, I don't think that corporations should have freedom of speech that is on par with actual human beings, but in our current system, they do. And none of the points you bring up here counter the notion that this issue has freedom of speech implications.
Also, there may be freedom of speech issues for the actual human beings that upload this video. If the video is being used for the purposes of politic commentary, for example, that is squarely fair use and permissible. To take down the video in that context would clearly be a freedom of speech issue.
In order to accommodate that, YouTube could not just take down all instances of the video sight unseen. An analysis would have to be done, and a big part of the takedown process is intended to avoid having the third party (YouTube, in this case) be required to expend the considerable significant resources needed to proactively analyze each and every piece of content their users upload. That's the duty of the respective copyright holders.
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I had meant to mention something about the free speech issue, but had to get back to work... But it's definitely something that's important to consider.
One of the many problems with these fools is that they don't consider the long-term consequences of events - something this site's writers tend to have at the top of their agenda. You can certainly say that in this case, and this case alone, free speech is not directly being affected. It's a contract issue between supposed professionals, no more.
But, that's not the real criticism. A legal precedent that says that anyone appearing in a few seconds of a video without specific contracted permission can have every copy of that video removed is absolutely terrifying for free speech. Placing the burden onto a third party who cannot possibly know the details of any contract, even more so. Only a complete idiot can fail to see that.
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No, actually. I'm highly critical of Google when appropriate as well. What I am greatly enamored by is important free speech issues and avoiding bogus censorship through copyright law. Given your employer, I can see how you're not so interested in those issues, and prefer to brush them under the rug.
None of this is new law.
A huge number of amici filings in the case suggest you're completely wrong.
This case represents the rare convergence of a producer's failure to obtain a work-for-hire agreement or waiver and assignment of an actor's intellectual property rights - standard operating procedure in Hollywood for decades, and the producer's gross fraud in obtaining the actor's performance, invalidating the implied license in a joint creative work.
That is one aspect of the case, but as many others have noted -- *including* the US Copyright Office -- that still does not grant the actress a copyright interest in the film. Do you think the Copyright Office made its decision because it, too, is "greatly enamored with Google"?
This is not about freedom of speech.
Then you do not seem to understand the fundamental legal questions being asked.
It's about Google making a conscious decision to obtain the viral worldwide exposure and ad revenue from a video that went hugely viral overnight with hundreds of copies uploaded to hundreds of YouTube channels. That is YouTube's revenue model. It's about money and business.
Bullshit. The revenue from this particular video is nothing. As far as I know, the video itself wasn't even monetized. Furthermore, Google has a reputation of being *exceedingly* quick to pull down videos when it receives copyright claims on them. If what you claimed was true, it would not be doing so.
So, no, you're wrong. Very, very wrong.
You also might want to admit that you're actually the biased party here, seeing as you are the censorship company that Ms. Garcia hired to bitch about copies of the video that are not subject to US law in the first place. It's your name that's in the emails in the filing.
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Yeah, right.
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So people with legitimate anti-google points are just get mixed up with all the astroturf and ignored.
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SOLUTION
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Re: SOLUTION
So you're saying they should have a duel to the pain. No wait, that leaves the ears intact, never mind.
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What about the boost to her career?
I'd think that having a fatwa issued against you would be an excellent way of ascertaining that you've done something wonderful. I'm actually somewhat jealous that I haven't managed that yet. I suppose I'll have to work harder at desecration, sacrilege, and abomination. Dammit.
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"Ms. Garcia's performance is still available on Google's Worldwide Platform and also viewable in Egypt, the nation in which the fatwa was issued for Ms. Garcia's execution."
As one can see from the above quote her interest is staying alive, not in copy right law.
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Claiming copyright on a video will not help Garcia stay alive if a radical Muslim tries to shoot her.
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Could be abdominal, could be thoracic, or encephalatic... depends on how they try to kill her.
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Aliases
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Kozinski's order clearly is broader that Google's implementation. Whether or not anyone agrees; the judge's order is the judge's order.
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And the law is the law? So, what is your point?
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But it's an order?
Maybe I'm dumb, but isn't all of that irrelevant at this point? These are no longer normal DMCA takedowns; Google is under a court order. You can argue all day that the order should not have been issued, and I'll agree with you, but the order WAS issued.
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Re: But it's an order?
The DMCA has specific limitations 512(j) concerning injunctions issued under the act. It would appear that Kozinski ignored those limitations at almost every turn.
It is reasonable to argue that perhaps Google should have just followed the extreme wording of Kozinski's order, while raising those issues on appeal (or in requesting en banc) but it appears that Google did what seems perfectly reasonable in following the standard takedown procedures as prescribed in the law.
Really, the problem goes back to the extreme wackiness of Kozinski's order.
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Re: Re: But it's an order?
The order is clearly out of the bounds of these - (ii) states you need a specific online location AND that it be outside the United States, and (i) does not apply because it's not a specific subscriber or account that's being blocked. And the law clearly states that these are the ONLY remedies allowed. It's too bad the judge can't be cited for contempt of law.
But... If Google is in contempt of an illegal order, is that something that can be overturned on appeal? Or is it like an unjustly convicted person escaping from prison - they're still guilty of the escape even if they never should have been there in the first place?
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And it's rather dumb to say she shouldn't have appeared in "that or any other 'movie'". Are you saying no actress should ever appear in any movie ever? She was lied to about what the movie was.
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But achieved at the cost of harming an innocent party.
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The limit on what a DMCA/copyright claim covers? Gone. With what she's fighting for, all someone has to do is claim that a specific file/song/video is infringing, and suddenly the hosting company has to find and delete all copies of it, on their own dime, and without being able to take into account the fact that other copies may be perfectly fine.
US law stops at the US border? Gone, now even if something is perfectly fine in another country, if it's ruled illegal/infringing in the US it has to be pulled everywhere.
Someone up above asked how exactly she was paying for her lawyer, suggesting someone else may be bankrolling her, and while at first that may seem somewhat tin-foil hat territory, considering she's fighting to basically destroy the few protections and limits available in the DMCA, I can think of a few interested parties that might be willing to throw money at that, if it meant they didn't have to do it themselves.
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This wasn't a movie of one. Why aren't the other actors or members of crew asking to join the suit? Is she the only one who acted in it who has been threatened? Anyone know?
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Perhaps the rest of the actors that appeared in the movie are smarter or less crazed than this one.
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Blah Google blah...
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Re: Blah Google blah...
Here's the applicable piece of the article:
'US copyright law only applies in the US. The US court can't realistically order Google to remove the video in other countries, since US courts don't have jurisdiction there. Imagine the flip side: if a court in, say, China, ruled that Google had to block a certain video -- and then found Google in contempt for not blocking viewers in the US from accessing that content. Most people would flip out.'
And every time the things pops up elsewhere on _their_ servers. (blogspot), without any fucking penalty for them.
Probably because that's how the law is written.
A DMCA claim is applicable only to the specific file that it's pointing to, you cannot just claim 'File X on page Y is infringing, wipe every single instance of it off your servers and block them from being posted in the future', as that's just not how it works. The law in no way shape or form requires a company like google to proactively police what's posted, if you want other copies of a file pulled, it's your job to file claims(claims mind, note the plural there) to get them pulled.
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Section 512(j) -- why does it apply here?
Subsection (j) is referenced in subsection (c), the limit on monetary remedies:
A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material . . . , if the service provider�
(A)
* * *
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material
So as I see it, Google had better have a stronger argument that section 512(j).
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Re: Section 512(j) -- why does it apply here?
The whole thing is really a mess from top to bottom, made all the worse by a judge who seems to be working off of his own interpretation of existing laws, an interpretation that is very much not aligned with other cases in the past and contrary to how pretty much every other court has handled it.
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Re: Section 512(j) -- why does it apply here?
They apparently allege that Google has not even taken down all of the videos in the original complaint. If that's the case, I think Google's going to be in trouble. The injunction should not have been issued, but it was, and a stay was denied, so I'm pretty sure Google has to comply even if it's later overturned.
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Really? Did auto-correct change rails to reservation?
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Had you not heard the phrase "went off the reservation" before, or are you objecting to it?
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"This idiom originates from the years of US military colonization of western North America. It was used to distinguish between "good Indians" (those who stayed on the reservations, i.e. confined to the camps controlled by the military) and "bad Indians" (renegade Native Americans who refused to be interned in the camps and who did not subject themselves to the authority of US military rule).
For that reason, this term may be considered offensive by/to Native Americans.
http://en.wiktionary.org/wiki/Talk:go_off_the_reservation
P.S. I am a Native American. I was born and raised in Canada(as were my parents, their parents etc...), the biggest part of N. America. Or are we all just Native Africans?
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Then what is the question?
"...I can see how someone could object."
What do my thoughts matter then? If you can see it, you aren't going to attempt to change my mind are you?
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Good grief, I was just curious. Can't a guy just ask a simple question?
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I don't know, I thought that one was pretty simple, was I wrong? (That's a yes or no question, surely that is a simple one. Right? Oops, another question. Should I stop?)
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If there is a fork in the road, don't step on it. If you are at a crossroads, look carefully in all directions before proceeding. You are in control of your own destiny.*
*From my Book of WOW: Words of Wisdom.
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No link where we can buy it on Amazon? ;-)
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If you wish to keep laughing, search for "kickin' kickin' kickin', kickin' through the air" and tell me it isn't an original song. That is the only one available at this time as i am not allowing some publisher to profit off of my hard work. You wouldn't believe how hard it is to write songs. :) Tough life I tell you!
"I'm so bloody rich
and I only know three chords
...laugh it up funny boy."
P.S. If she wishes to monetize it, I have a much better idea than the poon-tang clam group. They know their album sucks so bad that they will only get away with one sale.
I have a million dollar idea and a million dollar plan of execution.
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You wouldn't believe how hard it is to write songs.
I would very much believe it, I don't know how some people seem to do it so easily.
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