by Paul Alan Levy
When I first read Judge Kozinski’s decision for a majority of a panel of the Ninth Circuit, holding that Cindy Lee Garcia, who has received death threats because her role in the movie Innocence of Muslims makes her appear to have cast serious aspersions on the prophet Mohammed, could assert her copyright in her five second performance and thus demand removal of the entire film from YouTube on infringement grounds, I had very mixed feelings.
Like the panel, I was outraged by her allegations about how she had been lied to procure her participation, and moved by the consequences she had endured; it was plainly a case in which the equities seemed to cry out for a way to do her justice. On the other hand, I was inclined to agree with devastating arguments about the panel’s copyright rulings, put forward by bloggers whom I often find reliable in these contexts, such as Eric Goldman, Mike Masnick; Rebecca Tushnet came later. Moreover, it worried me that the majority had issued an appellate preliminary injunction (rather than just remanding to allow the trial court to enter one), without the slightest concern about the prior restraint ramifications. On third hand, I was inclined to agree with Marc Randazza’s comment that this whole problem could have been avoided if Google, considering the great injustice wrought upon Garcia by the filmmakers, had simply exercised its discretion as a section 230 host to take down the video.
Google sought a stay pending appeal; that stay was denied by the panel; although a member of the Court called for a en banc vote on the stay issue, the stay failed to command sufficient votes and hence was denied. But the Ninth Circuit has invited any prospective amici to file short amicus briefs (no more than 2500 words) addressing Google's petition for rehearing en banc.
Public Citizen’s Amicus Filing
Last week we filed an amicus brief addressing several issues pertaining to the viability of the preliminary injunction against the posting of the Innocence of Muslims. Amicus briefs are not due until mid-April, after the due date for Garcia’s response, but we decided that it was only fair to allow Garcia to consider our position in crafting her response to Google’s petition.
We have taken no position on the substantive copyright issues, recognizing that other amici are likely to discuss those issues in detail. I am still inclined to believe that Google’s objections to the merits ruling are sound, although serious concerns have been raised by Eugene Volokh and David Post – I particularly enjoyed Post’s snarky comment that the interests of Big Copyright have been pressing all the substance out of the originality requirement for so long that Hollywood has no gripe about the panel’s having treated Garcia’s performance of the script that she was handed to recite as having sufficient originality to warrant copyright.
Instead, we urged the court to take First Amendment concerns about prior restraints into account, even though various copyright doctrines are sometimes said to avoid the need for separate consideration of free speech issues, because here, Garcia is seeking a preliminary injunction not to further copyright law’s function of creating incentives for the creation of expressive works but rather to suppress the expressive purpose for which her possibly copyrighted performance has been used. Indeed, we suggest that the court consider whether the purpose of suppressing expression constitutes copyright misuse. Finally, we point out that even if Garcia’s copyright claims do not justify the injunctive relief she sees, under Google’s standard procedures, she should be able to secure removal of the offensive video of her performance if she is able to prove, as she claims, that her performance was obtained through fraudulent representations about the film for which she was being filmed.
Google, after all, is no Ripoff Report or Pissed Consumer, sites that I have criticized here and here while defending a hosting site's legal right to thumb its nose at injunctions or judgments against its users and still refuse to take down material (see clarification below). Our brief points out that Google has typically taken the position that once a court of appropriate jurisdiction rules against its user, it will voluntarily remove the challenged material, not only from its own servers if it is the host, but even from its search engine database, even though section 230 would protect its right to continue to host the material and no law requires it to exclude the material from its search engine database.
Why Protecting Online Hosts Against Liability Matters
This last point reflects my biggest concern about this litigation. Targets of criticism — those who believe that they are the victims of wrongful online conduct — typically want to seek relief from the online service providers whose resources are used to place the challenged conduct online, because they are most easily identified, because they have deep pockets that can be tapped to satisfy monetary judgments, and because they can most easily remove the challenged material. But in adopting section 230, Congress made the very sensible judgment that service providers are generally stakeholders with no particular interest in the resolution of disputes between speakers and those who claim the speech was wrongful, and are least well situated to decide whether challenges to online speech are warranted. If online providers face the prospect of liability for wrongful conduct that they host, the cost of defending such cases, or even the cost of making sound assessments of the risk of liability — even the risk of having to be held liable — could lead many online providers to take speech offline, giving those who threaten to file lawsuits a heckler’s veto over speech that they do not like.
Should Google Have Done Anything Different?
Although Google is entitled not to be held liable, in our experience hosts often decide, as a discretionary matter, to take down challenged material because of its social consequences, and I continue to wonder whether Google made the right discretionary decision in choosing not to take Innocence of Muslims offline when it received Garcia’s complaint over having been tricked into participation in the making of the movie. (In this post, I defended Google’s decision to take the video down in particular countries where it had spurred especially virulent violence). Although there are some modest inconsistencies between Garcia's versions of events — in an interview with Gawker, she claimed that the script line she actually read was “is your God a child molester,” while the complaint characterizes the line she spoke far more innocuously as “Is George crazy? Our daughter is but a child” complaint ¶ 12 – the Gawker article and other online publications have located substantial documentary support, in the form of archival casting calls, for her basic claim that the actors were recruited by phony portrayals of the film in which they would be appearing. Moreover, Google was collaborating with the filmmakers themselves in defending against Garcia’s copyright claims – it introduced in opposition to the motion for a preliminary injunction an affidavit from one of the filmmakers attaching what purported to be a release from Garcia; Garcia then produced a counteraffidavit from a handwriting examiner suggesting that Garcia’s name had been forged.
Maybe it is understandable that Google, confronted with what it regarded as an illegitimate resort to copyright law to compel it to remove Innocence of Muslims from YouTube, has so stoutly defended its legal right not to be censored. Still, you would think Google would have been able to identify these same sources in deciding whether to honor her request for removal of the video from its servers. If Google was in active contact with the filmmakers, did it press them to respond to Garcia’s claim that she was hoodwinked? Did Google demand an explanation after the handwriting expert's affidavit suggested that it had been induced to file a forged document? Why did this experience not lead Google to question the filmmakers' overall credibility and change its discretionary posture about hosting the movie?
Google has some explaining of its own still to do.
After I wrote this post but before I published it, I noticed that Garcia has moved for contempt sanctions, charging Google with being lackadaisical in its response to the preliminary injunction. Although Rule 26(a)(2)(C) of the Federal Rules of Appellate Procedure, by its terms, gave Google until Monday March 31 to respond, it responded on Saturday with a detailed account of its efforts to comply to the injunction. Contempt was denied without explanation.
Garcia has now opposed the petition for en banc rehearing. I link to her brief, and discuss it briefly, here.
PissedConsumer advises that unlike Ripoff Report, its policy is to remove posts when a customer has been ordered by a court to do so (see FAQ #10 and #13). I have corrected the reference accordingly; my other criticisms of its business model stand.