A panel of eleven Ninth Circuit federal judges will hear oral arguments Monday in a rehearing of Garcia v. Google, a copyright case arising from the notorious "Innocence of Muslims" video that was associated with violent protests around the world. The appellant, Cindy Lee Garcia, argues that she holds a copyright in her five-second performance in the video, and because she was tricked into participating, that the video uses that performance without permission. EFF and many other public interest groups have filed friend-of-the-court briefs in the case, noting (among other concerns) that it is a matter of firmly established law that actors generally do not have a copyright in their performances.
Monday's hearing follows an earlier decision in the case by then chief Ninth Circuit judge Alex Kozinski, who sided with Garcia and ordered Google to remove the video from YouTube and prevent future uploads. That decision was immediately controversial, provoking a request for this rehearing by a larger panel. After several months, that request was granted in an order that eliminated much of the original opinion but which left the injunction in place.
EFF submitted a brief joined by a half-dozen other public interest groups, including the ACLU, Public Knowledge, CDT, New Media Rights, the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries. The brief notes the extremely unusual copyright analysis, and focuses on the fact that Garcia's complaint does not meet the rigorous injunction standard that was correctly applied by a lower court and should have been applied by the earlier panel.
Put simply: The lower court rightfully determined that Garcia's claim was unlikely to succeed, and refused to grant an injunction. The appeals court then not only incorrectly construed copyright law to support the idea that Garcia was likely to succeed, but further failed to weigh those chances of success against the harm to the public interest of granting an injunction.
This video was at the center of a global news story, and for the public to be unable to access the actual video that's being discussed is a major harm. Beyond this particular case, too, the precedent that a video can be removed from YouTube—and that future uploads of that video could be ordered blocked—is extremely dangerous to online freedom of expression.
Other briefs in the case focus more heavily on the question of Garcia's dubious copyrightability. The Copyright Office, too, has weighed in on the question by denying Garcia's registration of her performance. For a court to even entertain the notion that Ms. Garcia’s performance is copyrightable, especially for the purposes of a preliminary injunction, runs contrary to basic tenets of copyright and First Amendment law.
We'll be in the Pasadena courtroom for the Monday hearing, and the Ninth Circuit will also be streaming the argument online. Though some of the most concerning elements of the appeals decision have been eliminated, others remain. We continue to follow the case very closely.