En banc 9th Circuit nixes earlier Google takedown order for 'Innocence of Muslims'
Expressing sympathy for a movie actress “bamboozled” into appearing in an “anti-Islam polemic” that has incited death threats against her, a federal appeals court on Monday nonetheless reversed an earlier takedown order for the Innocence of Muslims.
Requiring the film to be removed from all Google sites including YouTube is an unconstitutional prior restraint under the First Amendment, the en banc San Francisco-based 9th U.S. Circuit Court of Appeals ruled (PDF) on Monday. Its decision reversed an earlier takedown order imposed by a divided three-judge panel of the 9th Circuit..
The plaintiff, Cindy Lee Garcia, filed a copyright suit over the claimed misuse of her individual performance. (A dubbed voice now says “Is your Mohammed a child molester?” during her five-second appearance.) However, the majority of the 11-judge panel found her claim stretched copyright law beyond its limits.
“Privacy laws, not copyright, may offer remedies tailored to Garcia’s personal and reputational harms,” the majority said. “On that point, we offer no substantive view. 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.”
However, Judge Alex Kozinski disagreed, saying that Garcia clearly had a copyright in her performance. Ordinarily, actors contract away their copyright, Kozinski noted in his dissent, but that didn’t happen in the Innocence of Muslims. Meanwhile, irreparable harm is shown by the death threats against her.
“The majority is wrong and makes a total mess of copyright law, right here in the Hollywood Circuit,” Kozinski writes. “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.”
Hat tip: Reuters.
Related coverage:
ABAJournal.com: “9th Circuit tells Google to take down YouTube clip, calls threats to plaintiff irreparable harm”
