A divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled today that Google must remove a low-budget YouTube film that prompted riots and killings in the Muslim world as insulting to Mohammad. The highly offensive film portrays Mohammad as a sexual deviate who invented a religion to serve his own desires. Google has been under pressure from President Obama and others to take down the film. While President Obama publicly insisted that the United States stood by the first amendment, his Administration repeatedly tried to privately force Google to yield to the demands. It correctly refused. However, the same result was achieved today by Cindy Lee Garcia, an actress in the film who was received considerable criticism and hate mail for appearing in the film. She insisted that she was tricked into the role and claimed a copyright violation. The decision in Garcia v. Google, Inc. was written by Chief Judge Alex Kozinski (right).
Kozinski lays out the facts in the first paragraph:
The film’s writer and producer, Mark Basseley Youssef—who also goes by the names Nakoula Basseley Nakoula and Sam Bacile—cast Garcia in a minor role. Garcia was given the four pages of the script in which her character appeared and paid approximately $500 for three and a half days of filming. “Desert Warrior” never materialized. Instead, Garcia’s scene was used in an anti-Islamic film titled “Innocence of Muslims.” Garcia first saw “Innocence of Muslims” after it was uploaded to YouTube.com and she discovered that her brief performance had been partially dubbed over so that she appeared to be asking, “Is your Mohammed a child molester?”
Garcia insisted that she was duped and thus never agreed to the movie. The court found that the alleged deception by Youssef nullified Garcia’s consent and validates her copyright argument.
even a broad implied license isn’t unlimited. . . . Garcia was told she’d be acting in an adventure film set in ancient Arabia. Were she now to complain that the film has a different title, that its historical depictions are inaccurate, that her scene is poorly edited or that the quality of the film isn’t as she’d imagined, she wouldn’t have a viable claim that her implied license had been exceeded. But the license Garcia granted Youssef wasn’t so broad as to cover the use of her performance in any project. Here, the problem isn’t that “Innocence of Muslims” is not an Arabian adventure movie: It’s that the film isn’t intended to entertain at all. The film differs so radically from anything Garcia could have imagined when she was cast that it can’t possibly be authorized by any implied license she granted Youssef.
The obvious concern is that actors will in the future be pressured to claim the same misrepresentation in demanding the removal of controversial films.
While I have tremendous respect for Kozinski, I share the concern with the dissenting judge that he is creating new law and overriding a trial judge who is ordinarily given great deference as the fact finder in such cases.
The district court did not abuse its discretion in concluding that the law and facts did not clearly favor Garcia. Instead, the majority makes new law in this circuit in order to reach the result it seeks. We have never held that an actress’s performance could be copyrightable. Indeed, “[t]here is little case law or statutory authority as to the position of performers as authors of an audiovisual work under U.S. law.” F. Jay Dougherty, Not a Spike Lee Joint? Issues in the Authorship of Motion Pictures under U.S. Copyright Law, 49 UCLA L. Rev. 225, 300 (2001).
I think both opinions are quite strong and worth a reading if you have time.
We have previously discussed how free speech values are being scuttled through hate speech and anti-discrimination laws. This would create a new possible weapon to use against controversial films. Google has been showing a commendable commitment to free speech in a variety of cases and controversies. It is promising to continue this fight which would involve either an en banc appeal (which would be advisable) and/or a petition to the Supreme Court.
Source: US News
http://www.nytimes.com/projects/2013/benghazi/#/?chapt=0
The New York times article regarding the film and evidence that it played a significant role on the attack on Benghazi. Not only did it instigate the attack on Bengahzi and 22 other embassies, it instigated the attack on Camp Bastion and Camp Leatherneck days later. My daughter was there during the attack and the Taliban stated that it was in retaliation for the film. However, there is no reason this film needed to be removed from YouTube.
Good luck getting the cleric extradited from Egypt.
Perhaps these clerics should be charged with contracting murder?
The following excerpt is not directly related here but it’s an outrageous free speech violation from California, in my opinion, deserving of its own post.
“Robert Van Tuinen had hoped to help out his fellow classmates. A student at Modesto Junior College, he wanted to celebrate Constitution Day, the day when the Founding Fathers signed the document that created this country. So he bought a handful of pocket sized Constitutions and started distributing them out on campus.
“And that’s when the trouble started.
“College officials weren’t too keen on his fondness for the founding document. While he was distributing copies, a campus security officer confronted him and brought him before school administrators. Apparently, the student was in violation of school policy. He was only allowed to distribute something like the Constitution in one of the college’s “free speech areas”.
“You heard that correctly, they have something called a “free speech area”.
“Unfortunately for Van Tuinen, someone else had rented out the area that day, so he wasn’t able to express his Constitutional right. This entire scenario is coated in irony. The young man couldn’t distribute a document that guaranteed his freedom of speech because he didn’t get permission from the school. Nor did he have access to the only area on campus where free speech is allowed.
“Fortunately, freedom prevailed… eventually. You see, the school is a state institution, which means they can’t deny any citizen their right to freely express themselves. So Van Tuinen brought Modesto Junior College to court, claiming they violated his 1st Amendment rights.
“And he won, after a year of court proceedings.
“Modesto Junior College had to get rid of their “free speech areas” and couldn’t prevent students from handing out flyers whenever or wherever they wished. Oh, and they had to pay Van Tuinen $50,000 on top of everything else.
“These types of victories might seem small. But situations like this exist all across the country. Towns and colleges think they can decide when you have access to your Constitutional rights. But each time someone like Robert Van Tuinen stands up and defends his rights, we all win. They might be small, but put them all together, and you could see the beginning of something powerful.
“And right now, that’s the last thing the government in D.C. wants to hear.
“Those politicians have been playing it fast and loose with the founding document whenever it gets in the way of their grand plans for America…”
–Agora Financial (for copyright compliance)
Scarcity makes the price grow $$ yonder $$ ! Is this a Mel Gibson moment ?
I think this needs to be visited by a higher court.
From the opinion (page 4):
“An Egyptian cleric issued a fatwa, calling for the killing of every one
involved with the film, and Garcia soon began receiving death threats. She responded by taking a number of security precautions and asking that Google remove the video from YouTube.”
See also page 16 (describing the threats and security precautions).
I know a person, just one, who still believes this film is what led to the attack in Libya.
Perhaps the filmmaker should have simply sought out actors who would be willing to say the lines that he dubbed over the actual dialogue from the script. There seems to be no shortage of people who are willing to say on the internet that Mohammed was a pedophile. Certainly some of them must have some modicum of acting ability.
It is one thing to risk one’s own well-being by making controversial or offensive statements; it is quite another to hire an actor for one project with a specific script and then to overdub the film with lines the actor never spoke and which bear no resemblance to the lines the actor actually did speak. This actor reportedly received actual death threats for something she never said or did, while the filmmaker, actually hid his identity for some time until identified by the press.
That’s some really brave, principled free speech — putting words in someone else’s mouth and putting that person at risk when you are afraid to put yourself at risk by saying those yourself under your own name. I’m all in favor of anonymous free speech, but there is a difference between anonymous free speech and attributing that speech to someone who didn’t say it. It is the moral equivalent of standing in front of a lynch mob and pointing to an innocent bystander in order to divert attention from yourself — and no, I don’t approve of lynch mobs, but I would _hope_ that if one was after _me_, I would not be so vile as to sic it on some other person in order to escape. Actually, it is worse than that, because this overdubbing was actually deliberate and premeditated; at least the failure to do the right thing in the lynch mob hypothetical might be explained by panic and human frailty.
I cannot imagine this not being granted cert by the SCOTUS. It is a decision that begs to be appealed.
Google has been very quick to take down YouTube videos on flimsy grounds of copyright claims, but this is not even in the ball park. Every photographer and filmmaker gets a release from actors and models. An actor’s claim of being “tricked” is pretty thin.
why angry at google? should be angry at 9th circuit
My search engine is startpage.com. Because it stores no tracking data at all, it’s totally off limits to the NSA, much less advertisers and other snoops.
I agree with all who have commented above me, above. Cool.
Google has the right to censor as it will – the take home message is that Google® has found a bed in the White House. I think I’m going to close my gmail account and start using Bing’s search engine.
Check out the UN Resolutions we sponsored – allowing women the right to hold public office (why would America sponsor such a resolution? I can see it agreeing with it – not sponsoring it!) – the adoption of speech codes (which, fortunately, did not pass in the UN – yet). I have the actual transcripts if anyone is interested.
Hopefully there will be an appeal.
just get ready for followers of religion of peace to kill more innocent people when in the future they find something else to get offended by. This decision has reinforced the tactic of violence to get what you want
Another on our dearly decorated queen: http://www.norfolkchapter.org/Truth_or_Consequences.html
THAT IS RIDICULOUS! I slaved over an article accusing Hillary of treason for blaming the video, hell… an AMERICAN, for simply exercising his first amendment rights to religion and free speech. Instead of defending him and our Bill of Rights, as should be REQUIRED of any US State Dept official, she turned on us, praised the great religion of Islam and called the Secretary of State’s “day after” ruling as judge and jury, “:talking points.”
Read it and let me know your thoughts: “The Spin Madame: An American Rapporteur (aka “The Shot Heard ‘Round the Word.)”
http://www.norfolkchapter.org/B_B_Arnold.html
Do you think this will erase their hate for the infidels/Do you think this will stop terrorism and Jihadism,?The killing of thousand of Christians in the middle-East.,burning hundreds of churches.?? They are raping the women in Syria and killing each other like savages.Do you think THe Mainstream Media is blind not to write about these issue.Ben Ghazi terrorist attach which killed our Ambassador Chris Stevenson wasn’t because of the hoax tape ,Hilary ,Obama ans Susan Rice lied .IT WAS THEM
The purpose of the First Amendment is to protect speech we do not like: not the speech on which we all agree.