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.

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.

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.

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.

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.

Once again, the frustration at Garcia's flippant suggestion that it was easy to block this video comes through in the filing:

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....

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.

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.

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.

Filed Under: alex kozinski, cindy garcia, cindy lee garcia, contempt, content id, copyright law, innocence of muslims, takedowns
Companies: google, youtube

New Zealand Lawyers Suggest Full Internet Ban For Repeat Infringers

from the as-if-that's-possible dept

We've covered the ongoing debates in New Zealand over the proposed three strikes law in the latest copyright reform bill. There are many, many people who are quite concerned about any sort of three strikes law -- which is why the earlier version was scrapped and the process was restarted. However, there are still some who think that it doesn't even go far enough. Lots of you have been submitted TorrentFreak's story about recent hearings about the bill where one group, the New Zealand Law Society, says that rather than a "disconnection" for three strikes, users should get a full internet ban. There's no indication that anyone in the government is seriously considering such a proposal, but it's really a rather startling suggestion. It ignores (as do basic three strikes laws), just how prevalent internet access has become in our lives. Talk about the punishment going way beyond the "crime."

Filed Under: copyright law, internet ban, new zealand, three strikes

Where Is The Evidence That Kicking People Off The Internet For File Sharing Is Needed?

from the evidence-please? dept

Techdirt reader Mark Harris (a technologist and actor in New Zealand) alerts us to the submission he made to the government concerning the proposed new copyright law that would effectively create a three strikes rule in that country. His main concern is the same one that has been raised around here plenty of times: where is the actual evidence that this bill is needed or that it will "help"? As always the evidence is lacking. He notes over and over again that no actual evidence is presented to back up this bill. There are claims from industry representatives, based on nothing, but no actual evidence. He concludes by pointing out that the real issue isn't file sharing, but the industry's unwillingness to change:

The problem here is not filesharing or even copyright infringement under old rules. The problem is a disruptive sea change in technology that is causing old business models to become irrelevant. It's not even about people wanting material for free -- evidence shows that people will pay even when they don't have to IF they want to, IF they feel that the object of payment is worthwhile.

The issue facing the content industries especially is an unwillingness to change their business models, even in the face of their irrelevancy. Content business models are about selling scarce things, such as albums and movies. When things can be copied at little or no cost, they are no longer scarce. These industries now want legislators like you to impose artificial scarcities through legislation such as this Bill.

The whole letter is well worth reading.

Filed Under: copyright law, new zealand

Armenia Decides It Needs Incredibly Strict Copyright Laws

from the copy-and-go-to-jail dept

Over the years, tons of studies have suggested that strong intellectual property rights are especially damaging in poorer and developing nations. So it's always a bit of a surprise when we see such countries willing to adopt draconian copyright and patent laws. Via Michael Scott we learn that Armenia -- currently ranked 135th in the world in per capita income, is apparently preparing to put in place quite draconian copyright laws. A first offense for copyright infringement would get you fined $2,500. This in a country where the per capita GDP is somewhere between $3,350 and $5,900 depending on who you believe. Oh, and for your second copyright violation? You're facing twelve months in jail. I'd hate to find out what the "third strike" is. Of course, the BSA has estimated that 93% of software in Armenia infringes on copyrights, so basically everyone in the country who uses a computer may be close to facing a year in jail.

Filed Under: armenia, copyright, copyright law

Chile Gets New Copyright Law: Some Good, Some Bad

from the doesn't-sound-all-that-good dept

We recently wrote about how India had proposed changes to its copyright law that included a few surprisingly good ideas (and a few really bad ones). However, some other countries have been changing their copyright laws as well. Earlier this year, a friend involved in these things told me to keep an eye out for Chile's new copyright laws, suggesting that I would be pleasantly surprised. Michael Scott points us to a brief description of the recently approved changes to copyright law in Chile... and, like India, it looks like a mix of good and bad. And, contrary to what I had hoped for, the bad seems to outweigh the good. To be fair, the summary is very cursory, so perhaps there's more to the changes than what's written. But the report highlights three changes, and from the summary, it seems like one change is good, one is bad and one is probably neutral.

The changes that will soon go into effect can be divided into three groups: the establishment of a new framework of exceptions and limitations to copyright and related rights, the incorporation of new offences, increased penalties and the consecration of new tools intended to prosecute crimes against intellectual property, and an extensive chapter on the liability of Internet Service Providers (ISP).

The first one is obviously the "good." More and better exceptions -- a la fair use -- is an unquestionably good thing. But, looking at the few details provided, it doesn't look like broad fair use-style exceptions were added. Instead, the exceptions look pretty limited:

For example, extending the framework of action for libraries and nonprofit archives in terms of the reproduction, translation and digitization of a particular work allows for it to be used for criticism, illustration, teaching or research purposes and also expands the use of works that aim to benefit a person with visual or hearing impairment.

Those are good exceptions, but those a pretty small subset of the type of exceptions that any good copyright law should have.

The "bad" is the second one. Increasing penalties makes little sense when penalties for violating copyright law are already way out of line with the "harm" done. The "neutral" one is the last one, concerning liability for service providers. Creating good safe harbors for service providers, so they're not blamed for the actions of their users, is definitely a good thing. But the devil is very much in the details -- and what the requirements are for a service provider to qualify for those safe harbors. While the report says "the ISP must meet certain requirements in order to be exempted from liability," it does not detail what those "certain requirements" are.

Filed Under: chile, copyright, copyright law

UK Consumer Watchdog Says Copyright Law Is Outdated

from the indeed dept

This is more or less stating the obvious to most folks around here, but UK consumer rights advocates, Consumer Focus, has put out a report pointing out that copyright law is obsolete and confusing to most consumers, leading many of them to infringe on copyrights frequently without even realizing it. This, the group notes, is a problem that should lead the government to fix copyright law by adapting it to the times. Of course, the UK seems to be going in the opposite direction these days with the Digital Economy Bill.... Still, it's nice to see more consumer groups realizing how outdated copyright law is these days.

Filed Under: consumers, copyright law, uk

Were We Smarter About Copyright Laws 100 Years Ago?

from the almost-certainly dept

A few months back, I wrote about attending an absolutely fascinating one-day conference all about the 1909 Copyright Act, which hasn't been the law of the land in about 33 years. And, yet, one thing became clear throughout the session: there was plenty in that law that made a lot more sense than what we have today. There were a few "old timers" who complained about the way it was before 1976, but their complaints were a lot more about the specific implementations (and, at times, oddly, a massive desire to keep content out of the public domain, which they found to be a fault of the 1909 Act). Law professor James Boyle has been looking over the legislative history that resulted in the 1909 Act and notes that we seemed to be a lot smarter about copyright law back then. Among the points raised: the recording industry was actually the one defending new technologies against being covered by copyright, noting that the innovation itself (in this case, the player piano) didn't actually take away anything from artists, but helped promote the goods that they sold (in this case, sheet music). But, what struck Boyle most was that unlike today, the legislators writing the law seemed to actually understand the real pros and cons of extending copyright, and didn't get sucked into misleading arguments about how copyright was "property." Even more amazing, legislators didn't automatically think that "more" copyright was a good thing -- but that it had potentially some benefits and some downsides. These days, of course, politicians have been taught that copyright is a universal good, and they rarely seem willing to recognize the potential downsides (or, even worse, the actual evidence of downsides) to extending copyright so far.

Filed Under: 1909, copyright, copyright law

New Zealand Officials To Scrap Copyright Law; Start From Scratch

from the but-who-will-be-involved dept

There was a lot of controversy over the past few months concerning an attempt to change copyright law in New Zealand. After tremendous uproar over the fact that the law (a version of three strikes) basically would declare people guilty based on accusations, rather than proof or conviction, the government finally agreed to dump the plan with plans to revisit it. However, it looks like now the government has decided to completely start from scratch, and to recreate copyright law anew. This is quite surprising. Historically, changes in copyright law tend to be patches. Every time a new technology changes things such that copyright law doesn't make sense, regulators duct tape on some "patch" that tries to deal with that new situation. Yet, New Zealand officials seem to be recognizing this, and want to see about rewriting copyright law from scratch:

The Copyright Act was written in the pre-internet age, and does not address any of the complexities surrounding file sharing, format shifting, and other modern issues such as DVD copying -- problems the last government was attempting to fix in a piecemeal fashion.

Of course, the real question is who will rewrite the law and how the process will work. If it's the industry, then you can expect the law to be much worse. But if it's designed with the full spectrum of interests taken into account, New Zealand could represent a useful sandbox for really (finally) rethinking some of the myths and talismans that some copyright maximalists insist are true, but for which no evidence exists. Hopefully, the government will consider ideas from outside the industry, and recognize both the public interest and the intention of copyright law.

Filed Under: copyright, copyright law, new zealand

Want To Get A Sense Of Just How Complex And Confusing Copyright Law Really Is?

from the then-check-this-out... dept

Michael Scott points us to an article concerning the Library of Congress issuing a report on how copyright law applies to libraries who possess unpublished audio works recorded prior to 1972. The problem, you see, is that no one was exactly sure whether or not these recordings were actually covered by copyright law. The real problem, though, becomes pretty clear pretty quickly as you read through the article: copyright law is a house of cards. We just keep layering new rules on top of old rules, and figure the courts will sort out the places where they contradict, overlap or confuse. But that leaves a ton of uncertainty in a variety of situations -- including this particular one. It should be a simple question: if a library is in possession of an unpublished sound recording from before 1972, what's the copyright status? But the mess that is copyright law makes it such that it's hardly an easy question at all -- and actually requires an 85-page report from the Library of Congress to go through all of the nuances. And then your everday individual is expected to understand what is "right" and "wrong" in copyright law?

Filed Under: confusion, copyright law, libraries, unpublished