‘Innocence of Muslims’ should have stayed on YouTube, court rules



The Hill

The 9th Circuit Court of Appeals on Monday ruled YouTube should not have been forced to remove a controversial film mocking the Prophet Muhammad due to copyright concerns.

A majority of the 11-judge panel reversed a decision from last year, when a three-judge panel sided with an actress who said she was duped into appearing in the film and had called for a preliminary injunction to remove it.

The circuit court ruled that the previous ruling was unwarranted and infringed on the First Amendment.

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

The low-budget “Innocence of Muslims” film caused an uproar when it was released in 2012. The Obama administration and others around the world condemned the film.

The administration initially blamed the video for inciting the attack on the U.S. diplomatic compound in Benghazi, Libya, which resulted in the deaths of four Americans and led to numerous investigations. The White House later walked back that assessment.

A three-judge panel on the 9th Circuit Court of Appeals last year ruled that YouTube was required to remove the film because of copyright concerns. The court had found that the actress who brought the lawsuit likely had an independent interest in the film, and the filmmaker exceeded his implied license to use her scenes, which totaled five seconds.

Last year’s ruling limited the versions of the film in which the actress appeared. But that had the effect of keeping the film off YouTube.

Many court observers criticized the 2-1 decision last year, arguing the case sent a dangerous message that anyone who played even a minor role in a creative work could collect royalties from it or force it down. The Copyright Office previously denied the actress’s attempt to copyright her performance. The office said it considers films to be a single integrated work.

The full court agreed with those critics, comparing the actress’s argument to “‘copyright cherrypicking,’ 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.”

Cindy Lee Garcia had sued Google, which owns YouTube, to get the video taken down. She had been hired for three and a half days of shooting for what was meant to be a separate film that never materialized. But her performance briefly appeared in the “Innocence of Muslims” film with her lines dubbed over comments about the Prophet Muhammad many deem offensive.

Garcia had been subject to death threats, and the three-judge panel previously found she would likely face irreparable harm if the video was not taken down.

The court said the actress might have been able to bring claims for relief on separate legal arguments, like defamation. But on the question of copyright, “the answer is no,” the court ruled. The majority also argued the actress’s claims of irreparable harm are “untethered” from the copyright law.

Judge Alex Kozinski, who wrote the original opinion, dissented. He continued to argue that her copyright claim was likely to succeed.

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