Fifteen months after it issued an extraordinary order requiring Google to take down a controversial video, based entirely on a specious copyright claim, the Ninth Circuit Court of Appeals has seen the light and rescinded that order.
Quick background: The video in question, called "Innocence of Muslims," is an anti-Islam polemic that sparked outrage around the world. Actress Cindy Lee Garcia—who was tricked into appearing on-screen, overdubbed, for five seconds—sued Google to have the footage removed. The district court refused and Garcia appealed. The Ninth Circuit concluded Garcia's copyright claim was "doubtful" but nonetheless ordered Google to remove the film from YouTube and take steps to prevent future uploads.
The uproar was immediate, for good reason. As we and others explained, the order was a prior restraint of speech, something that should rarely ever happen, and should never happen where the underlying claim is "doubtful." (In fact the Copyright office later refused to register Garcia's performance). Google, supported by public interest groups, scholars, service providers and media organizations, asked the court to reconsider the ruling and it finally agreed to do so.
Today’s opinion gets it right, from the first paragraph. Writing for the majority, Judge Margaret McKeown observed: “The appeal teaches a simple lesson—a weak copyright claim cannot justify censorship in the guise of authorship.” The opinion correctly affirms the basic rule that the injunction Garcia sought could only issue if the law and facts clearly favored her case. Here, the law and facts clearly disfavored Garcia’s copyright claim.
The opinion makes short work of the original copyright analysis, noting that, for better or for worse, the filmmaker created the only copyrightable work at issue. Indeed, the opinion observes, “treating every acting performance as an independent work would not only be a logistical and financial nightmare, it would turn cast of thousands into a new mantra: copyright of thousands.”
In addition, the court notes that Garcia cannot show irreparable harm, at least not the kind of harm copyright law recognizes:
Garcia seeks a preliminary injunction under copyright law, not privacy, fraud, false light or any other tort-based cause of action. Hence, Garcia’s harm must stem from copyright—namely, harm to her legal interests as an author. . . . Although we do not take lightly threats to life or the emotional turmoil Garcia has endured, her harms are untethered from—and incompatible with—copyright and copyright’s function as the engine of expression.
Garcia may have, as the court put it, "a serious and legitimate beef," but it's not one that copyright law can address.
Judge Kozinski offered a spirited but unpersuasive dissent, insisting that the majority’s opinion would eviscerate copyright law, and even analogizing Garcia’s performance to a draft chapter of a novel. But the majority did not claim that only a final draft can be a “work of authorship,” nor that there are no circumstances under which a performance could be a work. Instead, the majority simply said that Garcia’s five-second scene was not such a work.
More troubling, Judge Kozinski attempts to square his extraordinary interpretation of copyright with U.S. law by pointing towards the unratified Beijing Treaty on Audiovisual Performances as a similar interpretation:
While the Copyright Office claims that its "longstanding practices" don't recognize Garcia's copyright interest, it doesn't seem that the Register of Copyrights got the memo. The Register was a member of the U.S. delegation that signed the Beijing Treaty on Audiovisual Performances. See U.S. Copyright Office, Annual Report of the Register of Copyrights 8 (2012). The Treaty would recognize Garcia's rights in her performance. It provides that "performers" have the "exclusive right of authorizing . . . the fixation of their unfixed performances," and "reproduction of their performances fixed in audiovisual fixations, in any manner or form."
The majority dismissed this interpretation in a footnote, observing that the Beijing Treaty is not law in the US. But this citation casts into relief the deep problems we've highlighted with the Treaty, and with policy laundering more broadly. We'll write more about this particular problem in the coming days, but for now it's worth noting that this is exactly why we worry about the use of international treaties to ratchet up copyright law here in the U.S.
Today's decision is the right result, but it was an awfully long time coming. As Judge Reinhardt noted in a separate opinion, given that the injunction order involved a prior restraint on speech, the court should have reheard the case immediately:
By leaving in place the panel’s unprecedented gag order for well over a year, we surrendered to the threats of religious extremists who were offended by the film. For a United States court to do so was anathema to the principles underlying the First Amendment. It is remarkable that this late in our history we have still not learned that the First Amendment prohibits us from banning free speech in order to appease terrorists, religious or otherwise, even in response to their threats of violence.
We couldn’t have said it better ourselves.