Exasperation Shines Through As Google Angrily Responds To Contempt Motion Over Innocence Of Muslims
from the judges-are-not-like-pigs dept
Last week, we wrote that actress Cindy Lee Garcia had filed a motion for contempt against Google. If you don't recall, a few weeks ago, Garcia had (astoundingly) won her appeal to have the Innocence of Muslims 13-minute trailer removed from YouTube based on Judge Alex Kozinski's extremely novel interpretation of copyright law, in which the actress who is in 5 seconds of the "film" was given a copyright interest in her scene (something that even the Copyright Office has rejected).The filing for contempt was bizarre on many levels, mainly stemming from Judge Kozinski's bizarre order in the first place, which clearly went beyond the bounds of what copyright law says. However, Garcia and her lawyer, Chris Armenta, sought to portray a Google that was consistently thumbing its nose at the ruling, leaving many copies of the video online, and barely doing anything to take them down. At one point, in the contempt motion, Armenta suggested that Google really ought to just "hire an intern" to search for the movie and keep on blocking new copies. In response to the filing, the 9th Circuit gave Google 72 hours to respond (and a limit of 2,500 words). Over the weekend Google filed its response and it's fairly incredible in its own right, in that you can feel the exasperation of Google's lawyers in having to respond to what they believe is an almost entirely bogus filing from Garcia.
We will not mince words: These allegations are false. To Google’s knowledge, there are no copies of “Innocence of Muslims” available on YouTube, nor were there when Garcia filed her motion. And Google has worked diligently to comply with the Court’s injunction. It has blocked every copy of the video that it has found through automated and manual searches.As for the claim that it should just "hire an intern" Google points out that it has already done a hell of a lot more than that with more than 20 dedicated employees basically focused on the issue of keeping this movie off YouTube. The companies notes that it can't just use Google's famed (or infamous) ContentID program, because that's based on actual copyright law, not Kozinski's wacky interpretation of copyright law, and thus would do things like alert users and allow them to file counternotices. But since that's not allowed under the court order, it has had to manually adjust its process. And that has taken much more than "an intern."
And it worked under tremendous time pressure to develop a new method—one that combines automated screening technology and manual review—to identify and block new uploads. YouTube was forced to take that unprecedented, technically complicated step because removal through its existing automated system would trigger a chain of events inconsistent with the Court’s orders.The company notes that for all of Garcia's talk of "flagrant" defiance of the order, she names just one copy of the video that she was able to find on YouTube, and Google notes that, as part of the ongoing process it described above, that copy of the video (which had a grand total of 35 views) was actually removed from YouTube before Garcia even filed the contempt motion. Google even gives some details about how its automated systems scan through all of the videos being uploaded to find these things.
This work is substantial and ongoing, requiring significant commitment by the companies. At least 20 Google and YouTube employees have worked to ensure compliance, and they have collectively dedicated hundreds of hours to the task.
YouTube’s search algorithm gives highest priority to videos with a significant number of views... That means that some videos with minimal views that were uploaded before the Court’s injunction, and not found through manual searches, may be in the scanning queue before they can be identified.Once again, the frustration at Garcia's flippant suggestion that it was easy to block this video comes through in the filing:
That appears to be the case with the lone copy Garcia identifies in her motion.... That copy had approximately 35 total views, and YouTube’s automated system queued it for review behind videos with more views.... The system identified the video on the same day Garcia located it— indeed, before she brought it to Google’s attention.... And YouTube blocked it before Garcia filed her motion.
Garcia suggests that making “Innocence of Muslims” disappear is a “pedestrian, technical exercise” that can be accomplished instantaneously.... But that suggestion reflects a deep lack of technical understanding and vastly underestimates the burdens involved in complying with a sweeping take-down, stay-down order on dynamic platforms.As for Garcia's argument that the big bad Google is trying to dump the entire burden of finding new copies of the video on poor little Cindy Lee Garcia, Google feels quite differently:
The Court will search Garcia’s email attachments in vain for proof of that assertion, because Garcia made it up. Google has never placed the burden on Garcia, but instead has told her— accurately—that “Google is taking this seriously and is working quite hard to comply with the Ninth Circuit’s order.” .... Google also offered to explain to Garcia’s counsel precisely what Google was doing to comply.... Garcia’s counsel did not take Google up on that offer. Instead, after dropping the issue of YouTube’s compliance for over two weeks, Garcia’s counsel suddenly announced she would file a contempt motion within 30 minutes.... In response, Google’s counsel urged Garcia’s counsel to identify any copies that had been the subject of notifications and that remained on YouTube so that they could be addressed.... Garcia’s counsel declined to identify any, but filed her motion anyway.There's also this little tidbit, in a footnote, after pointing out that nowhere does Garcia provide a list of URLs that Google ignored. Instead, they name the one which, as described above, Google had already found and removed, and then here and there suggest there are others, even though those were all removed long ago. Google points out that Garcia's lawyers are clearly trying to mislead the court by not showing the context, nor providing a detailed list (which would actually show Google had removed all those copies), using quite a quote:
Notably, these URLs are scattered through her declarations; her motion neither mentions nor provides context for them. That is another reason to deny the motion. “ ‘Judges are not like pigs, hunting for truffles buried in the briefs.’ ” Independent Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003).Google also takes issue with Garcia's claim that Google failed to "take down" the videos (as Kozinski's order demands) but rather just disabled access to the videos. As we pointed out in our post, and Google points out here, the law actually says something different. But, more importantly, Google points out that fully deleting those videos would then create other legal problems:
Garcia complains about YouTube’s choice to block copies of “Innocence of Muslims,” rather than delete them altogether.... But the Court’s injunction does not require YouTube to “delete” copies. Instead, it directs YouTube to “take down” the copies. Feb. 28 Order at 2. And the phrase “tak[e] down” refers to a platform’s “disabling of access to, or removal of” allegedly infringing content. 17 U.S.C. § 512(g)(1) (emphasis added). YouTube has done just that. It has disabled worldwide access to “Innocence of Muslims”; no one can see the blocked copies.... Requiring deletion would turn the preliminary injunction into a de facto permanent injunction by leaving YouTube unable to restore the videos if it ultimately prevails.... The Court’s orders sensibly do not go so far.Then there was the argument that Garcia made that via Google's search engine, you could still be linked to copies of the video elsewhere. As Google points out, the injunction issued by Garcia only spoke about copies of the video on Google's websites. And, again, the exasperation shines through as Google points out that Garcia's main complaint seems to be that Google has not made the video disappear across the internet -- but, the company notes, Google is not the internet.
Finally, Garcia complains that Google has not removed from its search engine links to third-party websites containing copies of the film.... But the Court’s injunction requires Google and YouTube to remove only “copies of” the video, not links to third-party sites that may lead to it.... And it requires Google to remove such copies only from “platforms under Google’s control,” not third-party websites....There's also a discussion of how insane Garcia's demand for money is, as she calculates how much she wants (incorrectly) based on copyright's statutory damages number, but damages for contempt are limited to actual damages, not statutory damages from a different law. Furthermore, even if it was damages for copyright infringement, as we have pointed out plenty of times, the statutory damages are limited to infringement of a single work, not per copy, so at most Garcia would entitled to $150,000 -- not $150,000 multiplied by every copy of Innocence of Muslims that ever was on Google. They also note that it's particularly ridiculous to argue to multiply the statutory damages by copies of the video (basically all of them) that Google had already taken down.
Garcia’s fundamental complaint appears to be that “Innocence of Muslims” is still on the Internet. But Google and YouTube do not operate the Internet.
Finally, in the filing, Garcia claims that Google is keeping the video up (which it's not) to generate ad revenue. In our own comments on the original story, the guy Garcia hired to search Google to find these videos angrily insisted that this was entirely 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." There's just one big problem with this argument that it's all about the revenue for Google, and Google points that out in a footnote:
Garcia says YouTube “continues to use the infringing content to generate * * * revenues[.]” .... Not so. YouTube took measures to avoid running ads against known copies of “Innocence of Muslims” in September 2012.... Garcia’s allegation that YouTube wants to keep the video up to make money is spurious.Basically, Google manages to rip to shreds Garcia's contempt motion -- and to do so (somewhat amazingly) without also trashing Kozinski's original order. I find it difficult to see how the Court can read these two motions and not realize that Garcia's was completely frivolous, but considering that this is the court that found Garcia's initially frivolous case legitimate in the first place, who knows what's going to happen.
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Filed Under: alex kozinski, cindy garcia, cindy lee garcia, contempt, content id, copyright law, innocence of muslims, takedowns
Companies: google, youtube
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If the US judicial system is trying to screw up open, dynamic platforms in the US they are doing a very good work so far.
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How many judiciaries have actually understood the technology at large for 2014? This can probably be counted with both hands, even if we're including the part of scotus that vaguely understands technology.
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Maybe it's time all sides are required to undertake basic courses on the fields they are planning to work? You don't need to understand the technical details but you need to grasp the concept. Some judges outright refuse to understand the very concepts of technology.
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I don't know
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Neither Garcia nor the courts can force Google to remove every copy from the internet. All they can do is disable the videos from Youtube and remove the links from their search engine. They cannot scrub the video nor the links from Yahoo, Bing, Excite and the hundreds of other search engines our there.
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/s
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Ow, them's fighting words.
I wonder if there will be blowback from that, if so I trust Google has the next retort ready.
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I had some sympathy for Garcia...
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Re: I had some sympathy for Garcia...
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Re: Re: I had some sympathy for Garcia...
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Re: Re: Re: I had some sympathy for Garcia...
That qualifies as "terrible" in my book.
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Re: Re: Re: Re: I had some sympathy for Garcia...
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Re: Re: Re: Re: Re: I had some sympathy for Garcia...
Understand, I think that what she did in response to the film was also terrible. But that doesn't take away from the fact that a terrible thing happened to her.
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Re: Re: I had some sympathy for Garcia...
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Re: Re: I had some sympathy for Garcia...
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Re: Re: Re: I had some sympathy for Garcia...
If her demands were just applicable for her case and nowhere else, then fine, make all the crazy demands you want.
However, what she's demanding they do stands to screw a lot of things up, for a lot of people.
First and foremost, the idea of 'proactive blocking', where a company can be ordered to not only pull something, but to be forced to actively keep it from being posted again in the future. That is a huge problem there, and it completely blows past what the law actually allows, and you can bet it's got a whole bunch of companies champing at the bit in their eagerness to demand the same.
Second, the idea that even if someone absolutely does not have a valid copyright claim to something, it doesn't keep them from using the DMCA to order something taken down, that makes the already pathetically weak DMCA limits even worse.
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Make them give it to me!!!!!!!!!!!!!!!!!
She must be a way better actress than I was giving her credit for if she can still get people to listen to her.
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Re: No respect for life
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But if you take down videos when people make threats, then you're giving people who make threats the power to take down whatever they feel like taking down, and you are thereby rewarding that behavior.
I have no idea what you are trying to say here. The video is too large for Google? Google is too large for Garcia? What is too large for who?
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What about all the things pertaining to her life due to the death threats against both her & family and co workers ? Threats not only of death but raping her children and co workers. Her whole life has been put on hold, because a federal snitch decided to make a anti Islamic film right around the time of the presidential election.
She has been made to look like a fool in front of all America and around the world. Why not find out the truth America ? Why not stand up for the innocent ? She won in the 9 th district court hands down. I hope she wins and continues her career in Hollywood, she deserves a chance just like every other red blooded American
If google would have just done the right thing as the Judge has stated in the oral argument stating to google what would prevent Google from doing the right thing and just taking down the 14 min. video to spare miss Garcia. Google's response was who is to say we are not doing the right thing, with no regard to her life at all, nor her family.
Of course we all know that this is not a first amendment right due to the fact that her words were dubbed over. Any person with any intelligence could view the 14 min video and see that her lines had been dubbed over.
Miss Garcia has a copyright claim and wants her name cleared, clear it for God sake ! Miss Garcia is a actress looks to me she is not out to hurt Hollywood nor would this case. Have mercy, I hope she wins all the way around.
Also from what I understand the supposed author of Innocence Of Muslim is not fighting Miss Garcia, it is Google doing the fighting but why would they take it upon themselves to fight for a fraudster, a federal snitch, just exercising a little freedom of speech of my own. You go girl.... Ronnie
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Agreed. However, I would argue that "standing up for yourself" by abusing the law and attacking an innocent third party isn't really standing up for yourself at all. It's just an attempt to nominate someone else to take her place as victim.
"She has a copy right case !"
I don't see how. Can you explain?
"why would they take it upon themselves to fight for a fraudster, a federal snitch"
Google is not fighting for the filmmaker who, I think everyone agrees, is a colossal scumbag and liar. They are fighting for their own rights, the rights of its users, and, indirectly, the rights of us all.
Why do you applaud Ms. Garcia's efforts to stand up for herself and yet condemn Google for doing the exact same thing? Smells like a double standard to me.
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It's not Charles Carreon, is it? :P
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All of them.
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Meanwhile,
And thanks to VLC's (and other media player's) ability to stream torrents directly (instead of downloading them to hard disk first and viewing later), torrents can even be a hassle-free Youtube alternative.
Only the most novice or casual torrent users would consider Google as their go-to search tool.
I probably wouldn't have heard about this crappy movie if it wasn't for Lady Garcia making so much ado about it.
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Re: Meanwhile,
Yep, but not just torrent users. Only the most novice, clueless, or casual users consider Google as the beginning and end of the internet and finding things on it.
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Adrian
Which highlights a huge problem with any blanket order by a court of law requiring service providers to shut down current and future copies of an infringing video. The blanket order deprives users of the right to have their particular acts of alleged infringement reviewed by a court of law (perhaps in a different circuit, with different ideas of what constitutes infringement).
The DMCA makes clear that each user is responsible for his or her own acts of infringement, meaning they are separately triable offenses, each with a potentially different outcome, and should not be lumped together as a single, collective act of infringement by the ISP.
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They should be saying this MORE often...
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Not having seen the movie, I don't know how much impact her part has, but given how much grief she's caused, it might be worth the effort to remove it.
The movie in it's own right has caused a lot more grief, but she seems to be the one pushing it to clear levels of idiocy. Half the world may never have seen or heard of this movie without her bringing it to this point.
On a personal level, I'm not a fan of movies that set out to turn on an entire religious society, regardless of what that religion is, so I doubt I'd have considered the movie of interest to me and passed on watching it.
In this case though, I strongly disagreed with the judge in the initial case, because the reasons were simply wrong. I think I'd be suspicious of the judge's motives, both in the first ruling and any subsequent ruling, on the same subject.
Clearly, there are others involved in the film who would (using his ruling as a basis) also have copyright interest then, in this film. What of their rights remain? What if they want to assert their copyright claims in the movie, and upload their own copy?
Apparently they have none (at least as it applied to YouTube) since the Garcia case says the movie cannot be published. She appears to now be able to demand that nobody else's rights can be considered.
The court, in this case, has a lot to answer for.
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Further more the other actors in the film came out and said they too were lied to then went into hiding, but not Garcia, she is the only one with any balls to stand up to this madness. Isn't it strange how people around the world want to put their 2 cents in when they have no idea what they are talking about
Wake up, do research before you post a stupid comet .
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"Wake up, do research before you post a stupid comet ."
I suggest you take your own advice.
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You're only worried about the Christians being killed? Very interesting.
The rest of your comment doesn't actually address any of the points being made.
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The fact is, it takes more than a badly-made film to get folks riled up. Our constant interference in their affairs (to get at their oil) had more to do with Benghazi than anything else. Maybe we should leave them alone and find alternatives to petroleum.
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First there are limits on the First Amendment.
One does not have the right to yell "FIRE" in a crowded theater. Nor does one have the right to issue a "DEAR or ALIVE" warrant. Only government has the right to do the latter.
The issue is what is to be done legally when a blog, posting, or movie is well within the First Amendment under US law but is viewed by a foreign government as worthy of a "Dead or Alive warren and that the same content may be viewed in both places simultaneously.
Second, what is a firm like Google suppose to do to save people from their own actions when they assume that the same content which is benign in the US is viewed as Islamic defamation. She did participate in the movie. That participation has lead to to the equivalence of a Death warren. Google does not control all or even a majority of places the movie may be posted at. What is Google to do? What are Google's responsibilities?
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Exasperation [was Re: ]
——Mr Justice Holmes, SCHENK v UNITED STATES (1919)
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> crowded theater.”
> ——Mr Justice Holmes, SCHENK v UNITED STATES (1919)
FYI, the Schenk case was overturned by Brandenburg v. Ohio in 1969. The "fire in a theater" standard no longer applies in 1st Amendment law.
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Sounds like the title of an Easter Bunny horror flick.
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> crowded theater.
If there really is a fire, not only can you yell it, depending on the jurisdiction, you might even have a duty to yell it.
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Ah yes. This dumb cliche again. Three ways to shoot it down:
Firstly, if you yell "fire" in a crowded theatre when there really is a fire, people are still going to panic and trample each other to death. That's a fault of the construction of the theatre. Not the speaker.
Secondly, Holmes had the absolute nerve to say this when sending to jail a group of socialists handing out leaflets in a language most people in the U.S. couldn't even read (Yiddish) opposing the U.S.'s unjust participation in WW1. If anything, those socialists were the real firefighters, shouting fire when there really was a fire. And were sent to jail for it.
Thirdly, if you really do believe in this cliche, do yourself a favour: do not go up to your government and call for a ban on shouting "fire". Instead, go up to your government, and call for the banning of fire drills. Let's see how far you're committed to this premise. Does anyone remember the scene from the Simpsons, where Mr Burns' fire drill "makes" everyone in the power plant behave like complete idiots ("I think I won, Mr Burns!")? We all know what the point of that gag was.
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Here's a a copy of Comrade Schenck's pamphlet online.
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Of course, you were thinking of Abrams v United States, also decided in 1919.
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One does not have the right to yell "FIRE" in a crowded theater. Nor does one have the right to issue a "DEAR or ALIVE" warrant. Only government has the right to do the latter.
False. Please read this:
http://www.popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are- enough/
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I keep forgetting about Innocence of Muslims
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Google excuses - fighting piracy is hard work.
A) The fact is that out of 800+ links identified in the original DMCA Notices sent to YouTube over 40+ of these videos were live 10 days after the court order.
B) ContentID is not being employed by Google? Why does Google go to such extreme lengths to say why this would not work... Ask GAMERS and producer of Letsplay videos what they think about ContentID..
C) Google glosses over remove from their PLATFORM. The core platform is the Google search index. Anyone who fights piracy knows that links to File Sharing sites and Torrent sites are fundamental to the infringement battle. The millions of takedowns from RIAA and MPAA largely point to such sites. SEE the Google VIDEOS tab. One Click play buttons allow users to get content.
D) Google's Mobile platform has been serving up ads around Innocence of Muslims... notably CAFEPRESS ADS that pointed to tshirts mugs etc.
Let us not forget Google/YouTube exists based on the CONTENT contributions of individuals. Google seeks to control this content and copyright at all costs and in this example -complete disregard for the rights of the Individual and threats to her life. The Google PR machine (YouTube’s blocking messages trumpeting free speech) is ultimately threatening individual rights on the web. Law firms in defense of Google/Hollywood are merely courting big money and seek to make it harder for the individuals to protect themselves.
This is not about Freedom of Speech or censorship. This particular case should be centered on the rights of an individual that are subject to great fraud, politics and Google self-interests.
A convicted felon using countless aliases lied to actors. The actors claim they signed no contracts. The only contract to surface was after Google sent their attorney to a visit Nakoula Basseley Nakoulais convicted felon in JAIL and asked the fraudster for contracts to help Google discredit a copyright claim. Why would Google go to such length to seek a contract from a convicted felon who has committed countless fraud?
Google is defending its POLITICAL AGENDA, HOLLYWOOD, and GOOGLE BUSINESS INTERESTS with regard to Content, Copyright and DMCA interpretation on the world wide web.
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Re: Google excuses - fighting piracy is hard work.
You might have a point, but trying to use this case as the poster child... not gonna help ya.
Trust me I know shitty poster children, I am one...
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Re: Re: Google excuses - fighting piracy is hard work.
Cheer up, buddy. We here on TD think you're awesome.
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Re: Google excuses - fighting piracy is hard work.
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Re: Google excuses - fighting piracy is hard work.
"She" doesn't own the copyright to the film. And the film is what was uploaded. Nobody uploaded her 5 seconds worth of performance on it's own. Had they, she might have had a case.
The owner of the copyright of the film has the right distribute it as they see fit. At least, that's the way it's supposed to work.
Had this been a big Hollywood production, we would not be here discussing it at all. The courts would have squashed her case like a June bug on concrete.
Google is upholding the law they're supposed to uphold. Copyright law, and in this case what was handed down doesn't resemble copyright law in any way shape or form.
Google is quite right to fight against it. This time.
I fail to see how the individual who agreed to take part in film has any rights with respect to the finished film itself. According to the Copyright office, she was unable to file any copyright claim at all over her performance in the film, since the film is considered to be a single performance, and as such, the entire film may copyright ... which she doesn't own the rights to.
If the copyright office would not give her copyright claim over her performance, the courts should not have done so.
Google may be the big bad wolf in a lot of ways, but in this one, I hope the wolf wins.
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Re: Re: Google excuses - fighting piracy is hard work.
Congress, in its statutory scheme, has vested in the judicial branch the jurisdiction to review the decisions of the Copyright Office.
Perhaps you feel that Congress made a mistake, and should rather have the granted to the Copyright Office power to revise the decisions of the Article III courts.
Or do merely feel that the Copyright Office power should be plenary, unreviewable, and final?
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Re: Re: Re: Re: Google excuses - fighting piracy is hard work.
Article III
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"Tucker Decl."?
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Kash for Kosinsky perhaps
Stranger things have happened... and for a lot less money.
And judges are no less greedy than failed actresses.
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Better than working for a living.
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