Wikileaks Exaggerates Story About State Department Working With Google To Block Video

from the slow-down-folks dept

Just to be clear on a few things before I get into the meat of this post. (1) I tend to be a supporter of Wikileaks and its goals to help whistleblowers reveal important information, (2) I'm flabbergasted that Hillary Clinton would use a private server for her emails, (3) I think YouTube made a big mistake in blocking the ridiculous Innocence of Muslims video in various countries, and (4) I'm very concerned about public officials meddling in the affairs of companies in telling them to block certain content.

Given all that, I was quite intrigued when Wikileaks tweeted out a story this morning claiming that a recently released Clinton email "reveals that Hillary worked with Google's CEO to keep" the "Innocence of Muslims" video blocked on YouTube. That seemed like a big deal -- especially as I remembered, clearly, Google putting out a statement about all of this and rejecting the White House's request to censor the video. The problem, though, is that Wikileaks' tweet is vastly overstating the reality.

Clinton email reveals that Hillary worked with Google CEOs to keep #Bengazhi video blocked https://t.co/UWCbZarhWi pic.twitter.com/jcLklzM7Z3

— WikiLeaks (@wikileaks) March 18, 2016

The emails, which are also embedded below, don't seem to reveal nearly as much as Wikileaks would like them to say. First off, it's important to understand the timeline. The attack in Benghazi, Libya, happened on Tuesday September 11, 2012. By Wednesday, September 12, people were already (probably inaccurately) blaming the YouTube video which purported to be a "trailer" for a movie called "The Innocence of Muslims," which was a stupid and ridiculous video that mocked Islam (and eventually led to a whole different kind of legal fight involving copyright).

By Friday September 14th, there was widespread discussion about what Google/YouTube should do about this video, when (1) the White House confirmed that it had asked Google to "review whether the clip violated its policies" and (2) Google had announced that it would not block the video in the US, but would restrict access in Libya, Egypt, India and Indonesia. At the time, we argued this was a mistake by YouTube to take the video down at all.

So, by September 14th, it was now publicly known that the White House had asked Google to review the video and that Google had agreed to take it down in some countries, but leave it up in the US.

That brings us to the emails in question. The first is just an email from Denis McDonough, who was then the Deputy National Security Advisor (prior to becoming Obama's Chief of Staff), emailing a few people the phone numbers of both Google CEO Larry Page and then YouTube CEO Salar Kamangar. That email is on September 27th -- or basically two weeks after everything above had been confirmed.

The second email, sent an hour later, is from Nora Toiv, who worked for Clinton, responding and saying that "Sue just called back and the block will stay through Monday. They will not/not be unblocking it before then." It's not entirely clear who "Sue" is, but obviously someone who works at Google/YouTube. As a guess, it may have been Susan Wojcicki who is the current head of YouTube. She wasn't back then, but she was still a high ranking Google exec who had been involved with Google Video and the purchase of YouTube at the beginning, so it's possible she is the person in question.

Still, for all of the hubbub about this email, it doesn't seem to come even remotely close to revealing anything along the lines of what Wikileaks is implying. Again, this email was two weeks after it had already been confirmed that the White House had asked Google to review the video and Google had already publicly discussed its decision. At most, the email just reveals that people in the government were wondering if Google was planning to remove the geoblock in places like Libya and Egypt in order to be ready in case anything happened because of it.

I still think it was wrong for the White House to reach out and ask YouTube to review the video in the first place. And that it was wrong for Google to block the video in some places. But this email doesn't appear to be a smoking gun of Clinton "working with Google CEOs to keep Benghazi video blocked" as Wikileaks claims. It seems to be someone from the State Department reaching out to find out when the block might be lifted -- which, if anything, suggests that Google was making the decision on its own, rather than at the White House's request.

I'm all for revealing officials meddling in internet platforms and trying to get content blocked. That's bad news and we should discuss it and highlight it. But raising false alarms over things that aren't really there just makes you look like a tinfoil hat wearer. It's not worth it.

Filed Under: benghazi, blocks, censorship, denis mcdonough, first amendment, innocence of muslims, nora toiv, state department, videos
Companies: google, wikileaks, youtube

9th Circuit Judge Slams His Colleagues For First Amendment Failings In Waiting So Long To Fix Cindy Garcia Ruling

from the good-move dept

We already wrote about the 9th Circuit's en banc ruling that effectively "dissolved" the 9th Circuit's earlier, horrible, ruling in support of Cindy Garcia, ordering Google/YouTube to block any and all copies of the "Innocence of Muslims" videos that she appeared in (for just a few seconds). However, right before that ruling came out, a rather interesting amended dissent to an earlier ruling in the case came out. Written by Judge Stephen Reinhardt, he takes issue with the fact that a year ago, the 9th Circuit refused to do an "emergency rehearing" of the case. While it did eventually rehear the case, Judge Reinhardt notes that the end result was rather insane: because the court refused to move on the matter quickly, a perfectly legal video was censored from the internet for over a year. And that has tremendous First Amendment concerns:

This is a case in which our court not only tolerated the infringement of fundamental First Amendment rights but was the architect of that infringement. First we issued an order that prohibited the public from seeing a highly controversial film that pertained to an ongoing global news story of immense public interest. Then we ordered that the public could see it only if edited to exclude a particular scene, thereby conditioning freedom of expression on a judicially sanctioned change in the message expressed. We did this primarily because persons or groups offended by the film’s message made a threat—in the form of a fatwa—against everyone connected with the film. By suppressing protected speech in response to such a threat, we imposed a prior restraint on speech in violation of the First Amendment and undermined the free exchange of ideas that is central to our democracy and that separates us from those who condone violence in response to offensive speech.

Preach it, Judge Reinhardt. The Judge wants to send a message to his colleagues on the court about the ridiculousness of this situation:

Although I agree with the en banc opinion that is being issued in the normal course well over a year after the unconstitutional order, I dissent from this court’s earlier refusal to go en banc immediately on an emergency basis. Only by doing so could we have prevented the irreparable damage to free speech rights in the lengthy intervening period until we could take the case en banc under our regular procedure. The unconscionable result is that our court allowed an infringement of First Amendment rights to remain in effect for fifteen months before we finally issued our opinion dissolving the unconstitutional injunction issued by a divided three-judge panel.

And, as he points out, the court basically sanctioned blatant censorship because some people were offended by a video:

By leaving in place the panel’s unprecedented gag order for well over a year, we surrendered to the threats of religious extremists who were offended by the film. For a United States court to do so was anathema to the principles underlying the First Amendment. It is remarkable that this late in our history we have still not learned that the First Amendment prohibits us from banning free speech in order to appease terrorists, religious or otherwise, even in response to their threats of violence.

By refusing to immediately rehear this case en banc, we condoned censorship of political speech of the highest First Amendment magnitude. Although amateurish, offensive, and banned in many undemocratic countries, Innocence of Muslims is a film of enormous political, social, and religious interest....

[....]

By censoring Innocence of Muslims and limiting the public’s access to the film, we allowed fear of those opposed to the film’s message to trump our commitment to a robust First Amendment. In that circumstance, it was contrary to the fundamental obligation of our judiciary and a violation of this court’s constitutional duty for us to fail to go en banc in response to the emergency call. It is of no comfort that the panel shortly amended its original gag order to allow Google to show versions of the film with Garcia’s five-second appearance deleted. “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (emphasis added). A prior restraint is no less offensive to the First Amendment simply because it enjoins only a certain quantity of words or a small portion of a film. To the contrary, “it is wholly inconsistent with the philosophy of the First Amendment” for a court to pick and choose which speech and how much of it may be permitted as opposed to being enjoined. See Stanley v. Georgia, 394 U.S. 557, 566 (1969). Indeed, it exacerbates the First Amendment injury for a court to condition the right to speak on a change in the message being expressed.....

Nor does the fact that the suppression of speech ended with the en banc opinion lessen the violence done to the First Amendment. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). For over a year we violated the First Amendment by censoring a film that had become part of a global news story of utmost importance. “[E]very restraint issued in this case, whatever its form, has violated the First Amendment—and not less so because that restraint was justified as necessary to afford the courts an opportunity to examine the claim more thoroughly.” New York Times Co., 403 U.S. at 727 (Brennan, J., concurring). Restoring First Amendment freedoms after a lengthy period of unconstitutional judicial censorship does not cure the problem. Those freedoms should never have been denied, and the exercise of freedom that was lost pending en banc proceedings cannot be recovered.

Further, Judge Reinhardt puts this censorship in context:

In the fifteen months since the court refused to rehear the case on an emergency basis, there have been numerous developments regarding threats by religious extremists who reject pluralist values—the rise of the Islamic State of Iraq and Syria (ISIS), the murderous attack on Charlie Hebdo, the barbarous beheadings of innocent civilians, the kidnappings of young girls and their enslavement because of their religious membership, the bitter warfare between Shiites and Sunnis and among their terrorist allies, the emergence of groups such as Boko Haram, the failures of nascent democracies to take hold in the wake of the Arab Spring, and the spread of increasingly virulent anti-Semitism throughout Europe, if not the world. Setting aside the fact that Innocence of Muslims is an offensive film of poor quality, it was part of the ongoing debate pertaining to such events and its voice was silenced while the continuing debate was at a peak. Although the inability to view this particular film may have been no great loss, the suppression of speech was, as a matter of principle, intolerable under the First Amendment: a court ordered a political video removed from the public sphere because of threats of violence, thereby changing the content and context of ongoing global discourse. The constitutional violation is not cured by restoring access to the video well over a year later, long after the time when it was most relevant to the debate and of greatest interest to the public.

Thank you, Judge Reinhardt, for saying what many people have been thinking about this ruling since it first came out. It's amazing how quickly some will jump to supporting prior restraint when it is speech they don't like. It is good to be reminded that this is not acceptable -- especially by a court.

Filed Under: 9th circuit, alex kozinski, censorship, cindy garcia, first amendment, innocence of muslims, prior restraint, stephen reinhardt

Appeals Court Gets It Right The Second Time: Actress Had No Copyright Interest In 'Innocence Of Muslims'

from the took-'em-long-enough dept

Phew. For quite some time now we've been following the curious case of Cindy Garcia, who by all accounts was duped into being an actress in a film that was eventually sorta/partially released on YouTube as "Innocence of Muslims" and was cited by some as causing violence around the globe (a claim that others dispute). Garcia, for perfectly good reasons, was not happy to be appearing in a controversial film that was entirely different than the film she thought she was in. However, she then tried to use copyright law to take the film down. This seemed laughable on its face, and the district court quickly dismissed it. To the surprise and horror of many, however, on appeal, the 9th Circuit, led by Judge Alex Kozinski, overturned widely settled law for decades and claimed that the copyright claim was valid and further ordered Google/YouTube to block every copy of the movie -- which most people thought was a clear case of prior restraint against the First Amendment.

After some back and forth, the 9th Circuit agreed to rehear the case with a full slate of 11 judges (en banc). The case was heard late last year and just today, the 9th Circuit dissolved its previous ruling and is now upholding the district court ruling against Garcia. Judge Kozinski dissented, not surprisingly. Disclaimer: We filed an amicus brief in this case as well.

The ruling, written by Judge Margaret McKeown gets right to the point, copyright is not supposed to be used for outright censorship:

In this case, a heartfelt plea for personal protection is juxtaposed with the limits of copyright law and fundamental principles of free speech. The appeal teaches a simple lesson—a weak copyright claim cannot justify censorship in the guise of authorship.

As pretty much everyone has noted, the court also points out that it's sympathetic to the position that Garcia was put in by events out of her control. However, that is no excuse for abusing copyright law for the sake of censorship.

We are sympathetic to her plight. Nonetheless, the claim against Google is grounded in copyright law, not privacy, emotional distress, or tort law, and Garcia seeks to impose speech restrictions under copyright laws meant to foster rather than repress free expression. Garcia’s theory can be likened to “copyright cherry picking,” which would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture without satisfying the requirements of the Copyright Act. Putting aside the rhetoric of Hollywood hijinks and the dissent’s dramatics, this case must be decided on the law.

And, what that means is that Garcia has no copyright interest just because she appeared in the film. The court repeatedly notes (as did many others) that even the US Copyright Office denied Garcia's attempt to copyright her performance. And, further, notes that if the court were to accept Garcia's claim it would create quite a mess for copyright law:

Garcia’s theory of copyright law would result in the legal morass we warned against in Aalmuhammed—splintering a movie into many different “works,” even in the absence of an independent fixation. Simply put, as Google claimed, it “make[s] Swiss cheese of copyrights.”

Take, for example, films with a large cast—the proverbial “cast of thousands”—such as Ben-Hur or Lord of the Rings. The silent epic Ben-Hur advertised a cast of 125,000 people. In the Lord of the Rings trilogy, 20,000 extras tramped around Middle-Earth alongside Frodo Baggins (played by Elijah Wood). Treating every acting performance as an independent work would not only be a logistical and financial nightmare, it would turn cast of thousands into a new mantra: copyright of thousands.

The court actually spends a lot of time on this, noting what a ridiculous situation it would make for the entire movie industry, which again raises serious questions about why the MPAA chose not to participate in this case.

Untangling the complex, difficult-to-access, and often phantom chain of title to tens, hundreds, or even thousands of standalone copyrights is a task that could tie the distribution chain in knots. And filming group scenes like a public parade, or the 1963 March on Washington, would pose a huge burden if each of the thousands of marchers could claim an independent copyright.

Even beyond the whole swiss cheese thing, the court rightly points out that copyright is given to those who "fix" the work in a tangible medium, and Garcia did, well, none of that:

Garcia’s copyright claim faces yet another statutory barrier: She never fixed her acting performance in a tangible medium, as required by 17 U.S.C. § 101 (“A work is ‘fixed’ in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”) (emphasis added). According to the Supreme Court, “the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” .... Garcia did nothing of the sort.

For better or for worse, Youssef and his crew “fixed” Garcia’s performance in the tangible medium, whether in physical film or in digital form. However one might characterize Garcia’s performance, she played no role in fixation. On top of this, Garcia claims that she never agreed to the film’s ultimate rendition or how she was portrayed in Innocence of Muslims, so she can hardly argue that the film or her cameo in it was fixed “by or under [her] authority.”

Finally, even though it notes it does not need to, the court addresses the question of "irreparable harm" which was a key part of Kozinski's original ruling. Here, the court rightly points out that, while Garcia may face harm, it's not because of the copyright and abusing copyright law to protect against such harm is not what the law allows.

Although we do not take lightly threats to life or the emotional turmoil Garcia has endured, her harms are untethered from—and incompatible with—copyright and copyright’s function as the engine of expression.

In broad terms, “the protection of privacy is not a function of the copyright law. . . . To the contrary, the copyright law offers a limited monopoly to encourage ultimate public access to the creative work of the author.”

The court further cites cases such as Scientology abusing copyright to try to suppress a study and Hulk Hogan suing Gawker to suppress a sex tape, to show that, while many people seek to abuse copyright law in this manner, it is totally inappropriate.

And then there's this:

Ultimately, Garcia would like to have her connection to the film forgotten and stripped from YouTube. Unfortunately for Garcia, such a “right to be forgotten,” although recently affirmed by the Court of Justice for the European Union, is not recognized in the United States.

And, finally, the ruling smacks around the original injunction from Kozinski for its clear First Amendment problems:

The takedown order was unwarranted and incorrect as a matter of law, as we have explained above. It also gave short shrift to the First Amendment values at stake. The mandatory injunction censored and suppressed a politically significant film—based upon a dubious and unprecedented theory of copyright. In so doing, the panel deprived the public of the ability to view firsthand, and judge for themselves, a film at the center of an international uproar.

[....] The panel’s takedown order of a film of substantial interest to the public is a classic prior restraint of speech..... Prior restraints pose the “most serious and the least tolerable infringement on First Amendment rights,”... and Garcia cannot overcome the historical and heavy presumption against such restraints with a thin copyright claim in a five-second performance.

Well done, 9th Circuit. Of course, it's still bizarre it took you two tries to get it right.

There is a "concurring" opinion from Judge Paul Watford, in which he argues the majority decision went too far in making broad claims, and he would have preferred a more narrow (and less useful) ruling, focusing solely on the "irreparable harm" question and leaving aside the entire (important) question of whether or not Garcia had any copyright interest in the film. Thankfully, the majority of the panel did not agree with him.

And, finally, we get to Kozkinski's panicked defense of his own original ruling:

Garcia’s dramatic performance met all of the requirements for copyright protection: It was copyrightable subject matter, it was original and it was fixed at the moment it was recorded. So what happened to the copyright? At times, the majority says that Garcia’s performance was not copyrightable at all. And at other times, it seems to say that Garcia just didn’t do enough to gain a copyright in the scene. Either way, the majority is wrong and makes a total mess of copyright law, right here in the Hollywood Circuit.

Wait, what? The 9th Circuit is "the Hollywood Circuit?" I mean, sure, technically Hollywood is in the 9th Circuit, but...

In its haste to take internet service providers off the hook for infringement, the court today robs performers and other creative talent of rights Congress gave them. I won’t be a party to it.

Kozinski is wrong. As most of the rest of the court and the Copyright Office and tons of copyright experts all seem to recognize, Garcia has no copyright interest in her performance. She did not fix it in a tangible medium. Kozinski goes on to argue that this ruling is what will create a true mess of copyright law:

The implications are daunting. If Garcia’s scene is not a work, then every take of every scene of, say, Lord of the Rings is not a work, and thus not protected by copyright, unless and until the clips become part of the final movie. If some dastardly crew member were to run off with a copy of the Battle of Morannon, the dastard would be free to display it for profit until it was made part of the final movie. And, of course, the take-outs, the alternative scenes, the special effects never used, all of those things would be fair game because none of these things would be “works” under the majority’s definition. And what about a draft chapter of a novel? Is there no copyright in the draft chapter unless it gets included in the published book? Or if part of the draft gets included, is there no copyright in the rest of it?

I think the majority ruling does a damn good job responding to this point, by pointing out that it's "moral outrage and colorful language" more than legal analysis:

The dissent spins speculative hypotheticals about copyright protection for book chapters, movie outtakes, baseball games, and Jimi Hendrix concerts. See Dissent at 35, 38. This hyperbole sounds a false alarm. Substituting moral outrage and colorful language for legal analysis, the dissent mixes and matches copyright concepts such as collective works, derivative works, the requirement of fixation, and sound recordings. The statutory definitions and their application counsel precision, not convolution.

All in all, while it's ridiculous that we had to go through this in the first place, after quite some time, the court finally got it right, no matter what Kozinski has to say.

Filed Under: 9th circuit, alex kozinski, cindy garcia, copyright, free speech, injunctions, innocence of muslims, irreparable harm, prior restraint
Companies: google, youtube

Celine Dion And Human Cannonballs: The Garcia v Google En Banc Oral Argument

from the copyright-on-trial dept

Background

Garcia v. Google. If it weren't for the Monkey Selfie, this case would have been the topic most on the lips copyright and Internet lawyers this year. The facts here, of course, are much less humorous: Garcia, an actress, was allegedly duped by a filmmaker into appearing in his eventually-titled "Innocence of Muslims" movie, which eventually turned out to be an anti-Muslim cinematic screed. A lot of people were offended, and some channeled their outrage into threats against her. Garcia sued the filmmaker for the harm she believes he caused her, but that's not the issue here.

What is the issue is why this case has turned into such a mess, because what she really wants is for the movie to go away. So she also sued Google to make it go away – or at least have the court order Google to remove it from YouTube. The thing is, though, courts aren't supposed to be able to simply order content to be deleted, and for some very good reasons. We have laws (notably Section 230) that insulate intermediaries from take down orders because ordering content to be taken offline means ordering content to be censored.

However, as those who have read Techdirt for any length of time know, American law seems to have a "censorship is bad except when it comes to copyrighted content" exception. Intermediaries are not insulated from demands to take down content when the person asking for its removal can claim that the reason it needs to be removed is because it violates their copyright.

But even then there are some limits on the injunctive power of a court to order content to be removed, particularly at the preliminary injunction stage, which, believe it or not given everything that's followed, is only as far as her case had gotten. Generally speaking, preliminary injunctions are only issued when there is a likelihood that the party seeking the injunction will ultimately win the case, as well as a likelihood of irreparable harm to it if the court does not issue an injunction right away, before there has been a chance to evaluate the lawsuit on its merits. The district court considering Garcia's request for a preliminary injunction rejected it on both counts. It didn't appear Garcia had a valid copyright to sue Google for infringing, and even if she might have, there was no need to issue an injunction before the court had a chance to fully consider the question.

And that would have been the end of it, except the Ninth Circuit, in a three-judge panel led by Judge Kozinski, decided otherwise, first finding her a copyright interest and then using it as the basis to issue a broad injunction to Google ordering the film's removal from YouTube (the injunction was later dialed back somewhat, but it still remained quite expansive). Which is what caused all this consternation, because if Judge Kozinski were right about her having a legitimate copyright claim, it would stand to change copyright law from how we understood Congress to have crafted it, as well as set the stage for even more efforts to censor online content.

So Google, backed by 10 amicus briefs (including one I wrote on behalf of Techdirt and the Organization for Transformative Works) petitioned the Ninth Circuit for a "rehearing en banc," which basically asks the entire circuit to rethink this decision, given how much it would wreck if it remained valid precedent. And it worked! The Circuit agreed to reconsider the case and held a hearing on it yesterday in Pasadena.

The Hearing

It was not actually necessary to be at the hearing to follow along given that it was also streamed (and tweeted...). As it was, one judge out of the 11-judge panel, Judge Berzon, participated remotely. But there are always certain intangibles that can only be experienced in person, like seeing what appeared to be some representative of the defendant filmmaker distribute nicely xeroxed packets of propaganda advertising the book of the script for his "Innocence of Muslims" film to everyone in the gallery before the hearing began…

As for the hearing itself, it took about an hour and essentially ended up focusing on these two questions: whether Garcia could have a copyright interest in the 5 seconds she appeared in the final film, and whether the preliminary injunction was appropriate. But the unusual procedural posture of the case caused the two questions to frequently blur together.

Garcia's lawyer argued first and opened with, "Cindy Lee Garcia is an ordinary women surviving under extraordinary circumstances." She then went on to spell out some of the awful threats she had gotten, but then the judges quickly jumped in to ask how those threats bear on the preliminary injunction standard. (Note: I frequently refer to the "court" generally, rather than identify the judges specifically, although I did note some of Judge Kozinski's lines of inquiry due to his particular effect on this case earlier.) Garcia argued that because some of these threats were death threats, that supported the argument that without the injunction she was facing irreparable harm. That may be so, the court then asked, but the possibility of irreparable harm was only one factor considered by the district court. To get her injunction there had to be a threat of irreparable harm as well as a likelihood that she would win on her copyright claim against Google. How was the district court wrong when it decided she had no copyright claim to prevail on?

One issue for Garcia (which the court kept coming back to in various respects) is that she had expressly disclaimed having a copyright in the final movie as a joint author. It's an argument that comes up from time to time when people who worked on larger productions try to claim partial ownership in the final product on the strength of their contributions to it. As courts, including the Ninth Circuit, have considered the question they generally have looked to the intention of the parties at the outset that all the "contributions be merged into inseparable or interdependent parts of a unitary whole." But Garcia wasn't arguing that she now owned a piece of the final "Innocence of Muslims" film; she was arguing that she owned a copyright in her performance made during the 3.5 days of filming.

The court worried about the implications of her argument. What was to keep everyone who made a cameo in a Lord of the Rings battle scene from also claiming a copyright interest in their performance? Garcia's answer seemed to get at the heart of her copyright claim. In the court's example everyone knew what the deal was when they worked on the movie. They had agreed, expressly or impliedly, that their performances be captured as part of the whole. But for Garcia, she never consented to ending up in what turned out to be the "Innocence of Muslims" film. The filmmaker had duped her into agreeing to appear in one sort of movie but then used her performance in something completely different. This deception unwound the agreement to subordinate her performance into the whole and allowed her to retain her copyright in the individual contribution.

The court seemed skeptical about this theory, for a number of reasons. For one, where was the work? While on the one hand it often seems like everything is copyrightable these days, its applicability is extremely technical. It requires an (a) original (b) work of (c) authorship that is (d) fixed in a tangible medium. As Google also later argued, she hadn't made out all of these elements in attesting to the copyrightability of her individual performance made over those 3.5 days. (There is also the issue that of her 3.5-days' worth of performance, only 5 seconds of it ever made it into the film.)

The court also worried about what the impact of her theory would be. If her retaining a copyright in her performance hinged on the deception, then what was to stop any actor from claiming fraud or mistake and allowing them to claim copyright in their performances as well? This question was particularly relevant for Google's position, which was argued next. Could all these people then issue takedown notices to intermediaries? As Judge McKeown noted, it would put intermediaries "at risk for thousands, millions of claims made after the fact." Would all of them have to act to remove this content lest they end up like Google and find themselves on the receiving end of a lawsuit?

In her rebuttal Garcia argued yes. The DMCA (or "free pass card," as she referred to it) protected intermediaries by getting them out of the dispute between the party who posted content, and the party claiming copyright in it. As long as it deleted the content as soon as it got notice, it could then let the parties fight it out. Google says taking down content is easy, she argued. We're not asking them to do something hard.

As Google argued during its turn, however, the implications of Garcia's argument are chilling (particularly, as we argued in our brief, for intermediaries who are not as large or well-funded as Google and for whom taking down content may well be much harder than she described for Google). If all it takes is a claim of fraud to claim a copyright interest, Google argued, it "fragments" copyright and makes every intermediary vulnerable. They can't adjudge the merits of every copyright claim. Allowing these sorts of claims, especially if they could be predicated on but five seconds of material, would "overload the takedown system." Intermediaries would simply have to delete content in order to protect themselves, and that would lead to the censorship of myriad protectable speech.

Other Arguments

Google made one other main point during its argument, targeting the preliminary injunction the Ninth Circuit had issued and similarly to how the EFF had questioned it in its amicus brief. The appeals court had enjoined speech, and as such there was a question of whether that was permissible under other standards governing injunctions. Garcia argued that it was, saying that there was a difference in the standard governing whether it was a mandatory injunction, which asks someone to do something, and a prohibitory injunction, which restricts someone from doing something in the future. This was a prohibitory injunction, she argued, because all the panel had decided to do is restrict further infringement. Google argued otherwise.

When it changes the status quo, it's a mandatory injunction. Here there was speech, but as a result of the injunction speech was removed. That makes it look like a mandatory injunction and thus requires a much stronger showing than Garcia could provide that it was warranted. After all, as Judge Thomas noted, "Is there anyone in the world who doesn't know your client is associated with this movie by now?" The damage has already been done, the "toothpaste out of the tube," as Google put it, and nothing to be accomplished by censoring the movie now.

The court also tested Google on its argument against Garcia having a copyright, and this discussion led to the examples cited in the title, the first of which being poor Celine Dion who kept being called upon to test various theories. Why does she get a copyright in her singing performance included in Titanic, Judge Kozinski wondered, but not Laurence Olivier for his performance in a film? To which Google answered that when Celine Dion recorded her song the intention was always that the performance be a standalone work then also included in the larger one, whereas for Olivier there was never an intention that his performance ever be considered some individually copyrightable work.

In her rebuttal Garcia took issue with the Celine Dion example. If she had been singing on the bow of the ship, intending for her appearance doing that to become part of the movie, it would have been one thing. But it's another if then the filmmakers, having captured her performance, then distribute the clip of it to pornographers to be put in their movies. Garcia's argument is that something similar had happened here, where a performance made in one context she had allowed got used in another that she hadn't. The question, though, is not whether the law would recognize this injury but whether copyright is the law that does. There are other laws that recognize rights that might be implicated, such as those establishing rights of publicity.

Interestingly a right of publicity case led to another detour by Judge Kozinski to test the contours of Google's argument, and that raised the second example in the headline. Google had argued that there was no precedent "that a 5 second performance is a separate copyright work." Judge Kozinski countered by citing Zacchini v. Scripps-Howard Broadcasting, where 15 seconds of Zacchini's performance had been broadcast on local TV. Because Zacchini was a human cannonball, however, those 15 seconds constituted a significant part of his performance. The Supreme Court found that the rebroadcast may well have caused him an injury the law recognized. But while the Zacchini case stands for the proposition that there can be something to protect in very short performances, it doesn't stand for the proposition that they are necessarily protected by copyright.

This is an important distinction, because violations of rights of publicity are governed by state law, and intermediaries are insulated from injunctions ordering the removal of content reflecting these injuries by Section 230. The Garcia v. Google case has been about forcing these sorts of injuries to be evaluated through the lens of copyright solely to avoid the bar prohibiting these injunctions, and if this sort of Section 230 end-run is allowed to work here, as Google (and many amici) argued, it will enable all sorts of censorious mischief.

(Note: Judge Kozinski also spent some time exploring the impact of the Beijing AVP treaty on the case at hand, but I will leave it to others to explore the potential implications of this argument, as they are worthy of their own post).

Filed Under: 9th circuit, alex kozinski, cindy garcia, cindy lee garcia, copyright, garcia v google, innocence of muslims, intermediaries, performances
Companies: google

Actors Unions Come Out In Support Of Separate Actors Copyright To Support Innocence Of Muslims Actress

from the that's-not-how-copyright-works dept

We've been covering the Garcia v. Google case for a while. What started out as a crazy case that pretty much everyone assumed was destined to go nowhere got weird in a hurry earlier this year when Judge Alex Kozinski upended decades of settled copyright law by deciding that an actor or actress might have a separate copyright interest in his or her performance in a film. The case involved Cindy Lee Garcia, an actress who was pretty clearly duped into performing in a video which became known as "Innocence of Muslims," a 13-minute film (which was called a trailer, though it's unclear if a full movie was ever actually planned or exists) that became quite controversial (and was, probably incorrectly, blamed for violence in the Middle East). Garcia was reasonably upset about her role in the film, and sought to have the entire thing pulled offline. She tried a few different ideas before settling on copyright, which made no sense at all, because actors and actresses are not considered to have a copyright in their own performance (remember, the copyright is in the "fixing" of the work).

When the original ruling came out, we noted it was a rare case where both Google and the MPAA might actually agree on a copyright issue, but it was not to be. The MPAA has completely sat out this ordeal, preferring to let others handle it. We've heard from multiple sources that the MPAA decided not to get involved because they didn't want to make any statements that could be seen as challenging WIPO's Beijing Treaty from a couple of years ago that tried to establish a new "audiovisual right" for actors, related to copyright.

Of course, while the MPAA is sitting it out, it appears that actors are not. Instead, they've actually decided to side with Garcia now that the 9th Circuit has finally decided to rehear the case, with a full (en banc) slate of judges. A bunch of amicus briefs have been filed (including one by us), in support of the fairly basic points that (1) no, actors don't have their own copyright in their performances and (2) blaming intermediaries is both against Congress' intentions and a very, very bad idea.

However, the single amicus brief on the other side, in support of Garcia comes from a variety of actors unions, led by the Screen Actors Guild and Actors Equity, claiming that Garcia's version is dead on. It's interesting to note that included in the brief is also the American Federation of Musicians, suggesting that a ruling on this matter could go well beyond just actors. Still, the actors' brief here pulls off an amusing balancing act of claiming that of course an actor can and should have a separate copyright interest, but that issue will almost never come up (other than, say, the present case).

The question at issue here is whether an actor’s performance in a motion picture can be an original work of authorship and, if so, whether the actor can hold a copyright, separate from the copyright in the whole motion picture. For the reasons described herein, the answer to both questions is yes, although the occasions on which this arises will be extraordinarily rare and completely outside the custom and practice of the audiovisual industry of the United States and many other countries.

The basic argument is that actors add a lot of their own creativity to a role. No one denies this. But they then take it further in arguing that originality automatically should lead to copyrightability. That's the nonsensical part. For example, the following paragraph makes no sense at all:

If an actor did not add sufficient originality to a performance, which actor a studio hired simply would not matter. The Academy Awards, Golden Globes, and Emmy acting categories and the Screen Actors Guild Awards would have no relevance. But it is indisputable that is not true; clearly actors are valued for their performance and the originality they bring to their respective roles. The actor imbues the lines with original expression that conveys emotion and brings the character to life.

No one denies that actors can add originality to a performance. But originality alone does not mean something is covered by copyright.

Separately, the actors' brief argues that Garcia's work was substantial enough to be covered by copyright, but again, the reasoning is suspect. They challenge the idea that her 5 seconds on screen is too short to be covered by copyright, because the filmmaker recorded a lot more. But that makes no sense, because the copyright claim is in the recording that Garcia wants taken down, not on everything he possibly recorded.

Google and its supporters argue, in part, that Garcia’s performance comprises approximately five (5) seconds of a larger motion picture and, therefore, is not worthy of protection. However, this ignores the fact that her entire performance was substantially longer, edited by Nakoula into what has been called a “trailer” for a larger motion picture. According to Garcia’s Complaint, her performance was spread over five (5) full and one partial script pages. First Amended Complaint, Exhibit A. A general rule of thumb provides that each script page represents approximately one (1) minute of screen time.... Additionally, Ms. Garcia worked for three and one-half days, indicative of more than five seconds of footage. Declaration of Cindy Lee Garcia.... Accordingly, while Nakoula may have used only a few seconds of Garcia’s performance, the full performance may not have been so de minimis as to be unprotected.

But, uh, the claim is only on the part that is shown online, because that's the basis for the takedown request. All of the rest of her performance is totally irrelevant here, because that's not what's claimed to be infringing. The only issue here was the clip on YouTube, which included merely 5 seconds of Garcia's time.

Finally, the actors insist that this issue will rarely come up in other circumstances because most "real" videos are made by sophisticated parties (i.e., MPAA studios) who contractually stamp out the possibility of something like this. Except, of course, more and more video works are not made in this manner. But the actors brush it off, claiming that all those other things, the piffle on YouTube and in reality TV doesn't matter because, tsk tsk, that stuff can't possibly be creative enough for copyright:

We appreciate that Google and some amici may be concerned that user generated content (“UGC”), documentaries, reality shows, game shows and news programs may not consistently adhere to well-established customs and practices of the audiovisual industry. However, programming that relies heavily on unscripted interviews and similar contributions will not be impacted by acknowledging copyrights in performers’ creative contributions because such contributions will typically lack the requisite “modicum” of creativity required to be considered an “original work of authorship.”

Got that? Short works, of 5 seconds or less absolutely are creative works deserving of copyright... unless they're "user generated content or reality TV. Notice the actors' biases seeping in? "Professional actors" deserve copyright, and forget everyone else.

The actors also brush aside any concern that new takedown requests from actors will burden tech companies, because apparently, if Google can handle it, so can the rest of the tech industry.

On the technology side, Google responds to tens of millions of copyright takedown requests on a monthly basis and has deployed a sophisticated, automated system to detect and take down infringing material from YouTube. While the number of takedown requests directed to its YouTube service is not publicly available, Google does report figures related to its other services. For example, in the past 30 days ending December 5, 2014, Google’s search engine received and responded to nearly 36 million take-down notices; the company has received and responded to as many as 11 million take-down requests in one week for its search engine.

Yeah, that's Google. Think of the startups that can't process that kind of takedown request volume. The actors do not think about that at all. Hopefully, the court sees through these weak arguments next week when it hears the case.

Filed Under: actors, alex kozinski, cindy garcia, cindy lee garcia, copyright, innocence of muslims
Companies: google, mpaa, sag, sag-aftra

Appeals Court Finally Agrees To Rehear Horrible Ruling Over Actress' Supposed Copyright In 'Innocence Of Muslims'

from the took-'em-long-enough dept

It's been a while since we'd heard anything from the 9th Circuit appeals court concerning Garcia v. Google, the case in which actress Cindy Lee Garcia successfully went after Google for hosting the controversial Innocence of Muslims video on YouTube. Garcia is one of the actresses who claims she was tricked into appearing in the film, leading to death threats. Without doubt, her situation is not a great one to be in, but it doesn't change the basics of copyright law, in which it has long been established that actors do not have a copyright interest in video and film projects they appear in... until Judge Alex Kozinski in the 9th Circuit appeals court suddenly reinterpreted decades of settled copyright law. Back in March, an unnamed judge on the court asked the court to reconsider the case, holding an "en banc" rehearing of the case with a full slate of judges (in most appeals courts en banc would be all judges, but the 9th circuit has so many judges that they limit it to Chief Judge Kozinski and 10 others). Back in April a bunch of folks -- including us at Techdirt -- filed amicus briefs asking the court to rehear.

And then... nothing.

Well, in July Kozinski issued an "amended" ruling which basically doubled down on the original, but added a few footnotes on how Google might be able to escape Kozinski's own bad ruling with some other arguments at the district level.

However, this morning, the court finally announced that it will, in fact, rehear the case en banc, and that the original and amended Kozinski rulings are no longer precedent in the 9th Circuit -- though the current injunction against Google does remain in place. So now we get to go through this process again. It will be some time, but expect a bunch of filings from the parties and amici and eventual oral arguments before a decision. So there's still quite some time until this case is decided -- but, for now, Kozinski's ruling no longer is the "current" word on the matter.

Filed Under: 9th circuit, actors, alex kozinski, cindy garcia, cindy lee garcia, copyright, en banc, innocence of muslims, movies, rehearing
Companies: google

Another Actor From 'Innocence Of Muslims' Sues Google Over Copyright Claim... Via Same Lawyer As Cindy Garcia

from the building-a-business,-huh? dept

Nothing much has happened lately in the bizarre legal case of actress Cindy Lee Garcia had against Google. If you don't recall, Garcia was one of the actresses who appeared in the "short film" called The Innocence of Muslims that became the center of a big story not so long ago for being incredibly insulting to many Muslims. Garcia claimed that she was duped into appearing in the film by its creator Nakoula Basseley Nakoula (who goes under a variety of names, including Sam Bacile). But, more importantly, she claimed that she had a copyright on her appearance, and thus could issue a takedown to make it disappear. Going against pretty much all settled law on the subject, the 9th Circuit Appeals court, lead by Judge Alex Kozinski agreed with her take, upending years of basic copyright law (even the Copyright Office has said she has no copyright claim). After lots of complaints, Kozinski doubled down on his original ruling, but added a couple of "outs" for a district court to fix his ridiculous interpretation (mainly by saying "fair use.") Either way, Kozinski ordered Google to take down the video (and originally put a very questionable gag order on the company about it).

Garcia's lawyer, Cris Armenta then accused Google of being in contempt of court by basically misrepresenting everything Google had done. That strategy failed, as the court rejected Armenta's attempt.

However, it appears Armenta isn't done with Google yet. She's found yet another actor from Innocence of Muslims, a guy named Gaylord Flynn, and convinced him to file yet another copyright lawsuit against Google over the film. Notably, the accusation is not about the film being on YouTube (since Google took all those down), but about the fact that doing searches on Google one can find copies of the film via other sites, including various torrent sites and also other video streaming sites like LiveLeak and DailyMotion. The fact that those other sites are not being sued kinda says a lot about what's happening here.

It appears that Armenta and/or Flynn hired one of the popular takedown request companies out there, DMCA solutions, to demand Google remove all these links from its search results. Google turned down the requests, and voila, Armenta gets to file another lawsuit against Google, based on the same ridiculous interpretation of copyright law that Garcia used, that merely appearing in the film gives one a copyright interest. I get the feeling this won't be the last such lawsuit either.

Filed Under: alex kozinski, cindy garcia, cindy lee garcia, copyright, cris armenta, gaylord flynn, innocence of muslims, nakoula basseley nakoula, sam bacile
Companies: google

Why We Filed An Amicus Brief In Garcia v. Google: Blaming 3rd Parties Has Serious Impact On Free Speech

from the not-just-about-copyright dept

Monday was the deadline for amici briefs over whether or not the 9th Circuit should rehear, en banc, the Garcia v. Google debacle, in which Alex Kozinski made a bunch of highly questionable decisions in ruling that actress Cindy Lee Garcia deserves a copyright in her 5-second performance shown in the controversial 13-minute "trailer" known as Innocence of Muslims. The 9th Circuit made it clear that it would welcome briefs from anyone who wanted to file them, and a bunch of organizations and companies have been lining up to do so. You can see the full list of briefs here, though at the time I write this, it's still being updated. If I get the chance I'll try to review some of the other briefs soon. However, I wanted to write about one such brief first: ours.

After some consideration, we teamed up with the Organization for Transformative Works to file our own brief concerning "intermediary liability." While the 9th Circuit noted it would accept briefs from all interested parties, it also said those briefs had to be shorter than 2,500 words, which is not a lot of space to make complex legal arguments. We fully expected many others to focus in on all of the (many, many) troubling copyright aspects in Kozinski's ruling, but wanted to raise a separate (and, in some ways, larger) issue that was almost entirely ignored by the ruling: that third parties should not be blamed for the actions of their users -- and that Judge Kozinski's broad injunction did just that.

Lawyer Cathy Gellis wrote up an amicus brief on our behalf, highlighting Congress's clear intent in both Sections 230 of the CDA and 512 of the DMCA in providing safe harbors from liability for third parties, in order to encourage them to support free and open dialogue and discourse online, without fear of legal repercussions. As our brief argues, while many have ignored Section 230 (which excludes intellectual property), it should be quite clear that Garcia's case was really nothing more than an attempt to misuse copyright law in order to get around Section 230 and to hold a third party liable. Furthermore, as we've noted in the past, Judge Kozinski's injunction appears to go well beyond what the law says is appropriate in responding to copyright claims.

There is a reason why Congress was so intent on providing safe harbors, recognizing the incentives for broad censorship when you blame service providers for the actions of their users. Judge Kozinski appears to have ignored nearly all of Congress' intent in his ruling, and we're hopeful that (among the many other reasons why his ruling should be reviewed), the rest of the 9th Circuit will recognize that the original ruling has serious First Amendment implications, beyond just the basic copyright questions.

Filed Under: amicus brief, cda, cindy garcia, cindy lee garcia, copyright, dmca, free speech, innocence of muslims, intermediary liability, safe harbors, section 230, third party liability
Companies: floor64, google, organization for transformative works, youtube

Innocence Of Muslims Actress Says Court Should Ignore Copyright Office Rejecting Her Copyright Claim

from the well,-duh dept

This will hardly come as a surprise, but Cindy Lee Garcia -- the actress who appeared in 5 seconds of the 13-minute "trailer" known as "Innocence of Muslims" and somehow convinced the 9th Circuit Appeals court to say she had a copyright interest in the film, allowing her to demand a widespread and highly questionable order to force Google to take down all copies of the video on its platforms -- doesn't think there's anything wrong with the ruling or with the 9th Circuit's denial of Google's request to stay the order until the case could be reconsidered. As we noted earlier, the court has asked for briefs on whether or not it should reconsider the request for the stay (prior to even deciding if it should reconsider the entire ruling). Garcia's lawyer, Cris Armenta has filed their brief on this issue, and as with many earlier filings, it is problematic on many levels.

In short, though, she of course argues that the original ruling was correct, that her "copyright" has been infringed and that any ruling to the contrary leaves her in great danger. Despite plenty of copyright lawyers and experts reacting in horror to the original ruling, she insists it's obvious that every actor in a film gets a copyright in their own performance. As for the fact that the Copyright Office itself rejected her copyright claim saying that "longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance contained within a motion picture," Garcia says that the court should just ignore all that bluster. I mean, really, who does the Copyright Office think it is, anyway? Actually, she first challenges the "questionable provenance" of the Copyright Office's rejection of her copyright, since she says Google got a copy before she did, and then that it apparently doesn't include a statement from the Copyright Office that it "is a true and correct copy of the record in question." Even then, she begs the court to ignore the Copyright Office.

Further, this court should not defer to the letter because it is inconsistent with the Copyright Office's previous interpretation of the Copyright Act.... Previously, the Copyright Office interpreted the Copyright Act much differently than it does now. As recently as 2010, the Office explicitly stated that performances consisting of "the art of imitating or acting out situations, characters, or other events" are copyrightable as pantomime.

Of course, that's a totally different issue. Yes, the Copyright Office says that pantomimes are copyrightable (a different issue that has its own problems), but that's unrelated to the question of whether an actor in a motion picture retains the copyright in their performance. Instead, Garcia tries to reverse this question, by saying that nowhere has the Copyright Office ever said that actors do not get a copyright in their performance. Because anything the Copyright Office doesn't say is clearly what they allow.

With respect to the issue of motion pictures, nowhere does the Compendium state that actors who are not employees and who have not transferred the rights in their work are not entitled to copyright protection.... Indeed, the Compendium only states that a film's producer is the "author" for purposes of copyright in situations where the participants are employees or have entered into work-for-hire agreements. If the Office's "longstanding practices" truly forbade an actor who never assigned the rights in her performance from asserting copyright, the Office would have mentioned those practices before now.

Of course, the other problem with Garcia's filing is that it doesn't actually focus on the issue at hand. The Court specifically asked that the filings focus on the question of whether or not an en banc panel should rehear the question of a stay for the injunction. Garcia's filing focuses on the overall ruling, not the specifics of the stay, and why the initial injunction can't be stayed until further proceedings occur. That said, given the way Kozinski has handled this so far, who knows what will happen.

Filed Under: 9th circuit, alex kozinski, cindy garcia, cindy lee garcia, copyright, copyright office, injunction, innocence of muslims
Companies: google, youtube

Court Quickly Rejects Contempt Motion Against Google By Innocence Of Muslims' Actress

from the nice-try,-but-no dept

Well, that didn't take long at all. Following Cindy Lee Garcia's bizarre motion for contempt last week, claiming that Google was thumbing its nose at the 9th Circuit's bizarre order to take down all copies of the Innocence of Muslims "trailer" in which she appears for 5-seconds, Google hit back with an exasperated explanation for why nearly everything written in her motion for contempt was simply false. Apparently it was fairly convincing, because the court has wasted little time in denying the motion for contempt, providing no explanation whatsoever. The entire order reads:

Appellant's emergency contempt motion... is denied.

So much for that little wasteful diversion. Now we wait to see if the en banc 9th Circuit will revisit whether or not it's appropriate to issue a stay on the injunction against Google.

Filed Under: alex kozinski, cindy garcia, cindy lee garcia, contempt, innocence of muslims, takedown
Companies: google, youtube