By Sudhin Thanawala and Brian Melley
Associated Press
SAN FRANCISCO (AP) — In a victory for free speech advocates, appellate judges have ruled that YouTube should not have been forced to take down an anti-Muslim film that sparked violence in the Middle East and death threats to actors.
The 11-judge panel of the 9th U.S. Circuit Court of Appeal recently sided with Google, which owns YouTube, saying the previous decision by a three-member panel of the same court gave “short shrift” to the First Amendment and constituted prior restraint — a prohibition on free speech before it takes place.
“The mandatory injunction censored and suppressed a politically significant film — based upon a dubious and unprecedented theory of copyright,” Judge M. Margaret McKeown wrote in an opinion joined by nine other judges. “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.”
In a statement, YouTube said it has long believed the previous ruling was a misapplication of copyright law. It did not say whether the movie would go back up.
Actress Cindy Lee Garcia sought the injunction to have “Innocence of Muslims” removed from the website after receiving death threats. Her lawyer argued that she believed she was acting in a different production and had a copyright claim to the low-budget film.
Google countered that Garcia had no claim to the film because the filmmaker wrote the dialogue, managed the production and dubbed over her lines.
Garcia was paid $500 to appear in a movie called “Desert Warrior” that she believed had nothing to do with religion. But she ended up in a five-second scene in which her voice was dubbed over and her character asked if Muhammad was a child molester.
Garcia’s attorney, Cris Armenta, said in a statement the ruling artificially shrunk copyrights and allowed people to “subjugate” others for “hateful purposes” using the First Amendment.
“The decision short-changes the threats on the life of Cindy Lee Garcia who did not voluntarily participate in the hateful message that the controversial trailer about the Prophet Mohammed espoused around the world,” the statement said.
Garcia will likely not appeal the case to the U.S. Supreme Court in part because of financial considerations, the statement said.
The film’s writer and director, Mark Basseley Youssef, initially posted the nearly 15-minute trailer on YouTube in 2012, according to the appeals court. The film sparked rioting by those who considered it blasphemous to the Prophet Muhammad. President Barack Obama and other world leaders asked Google to take it down.
The larger 9th Circuit panel said it was sympathetic to Garcia’s concerns, but copyright law is not intended to protect people from the type of harm Garcia claimed to have suffered, including death threats.
The court cited a decision by the U.S. Copyright Office that denied Garcia’s copyright claim to the film. The copyright office said it does not allow such claims by individual actors involving performances in movies, according to the court.
Garcia’s theory of copyright law would result in a “legal morass” in which each of the thousands of extras in films such as “Ben-Hur” and the “Lord of the Rings” would have a copyright to the film, the court said.
“We are sympathetic to her plight,” McKeown wrote. “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.”
In a strongly worded dissenting opinion, Judge Alex Kozinski said the court appeared to be badly misinterpreting copyright law.
“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,” he wrote.
Google was joined in the case by an unusual alliance of filmmakers, other Internet companies and prominent news media organizations that didn’t want the court to alter copyright law or infringe on First Amendment rights. YouTube and other Internet companies were concerned they could be besieged with takedown notices, though it could be hard to contain the film that is still found online.
The court’s decision was not surprising and was consistent with previous copyright rulings, said Alex Lawrence, an intellectual property lawyer in New York not connected with the case.
Garcia’s goal of protecting herself was laudable, Lawrence said, but the attempt to bend copyright law had the potential to create unintended consequences that made many people nervous.
“A sigh of relief was heard today in Silicon Valley and Hollywood,” he said.
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