Citing free speech concerns,
Google is asking the 9th Circuit Court of Appeals to stay an order requiring it to remove the controversial clip “Innocence of Muslims” from YouTube.
“Google, YouTube, and
the public will suffer irreparable harm to their First Amendment and other constitutional freedoms if Google is not immediately granted a stay,” the company says in papers filed late
In the order, which was issued in secret last week, a panel of the 9th Circuit voted 2-1 that actress Cindy Lee Garcia was likely to prevail with her claim that the clip infringed
her copyright. The court granted Garcia's request for a preliminary injunction against YouTube and directed the company to take down any copies of the clip.
Garcia said in court papers that
she was duped into appearing in "Innocence of Muslims" after answering a Backstage
ad for a film called "Desert Warrior" -- which she thought was an adventure movie set in ancient Egypt.
When the clip appeared on YouTube in September of 2012, it was blamed for sparking a wave of protests in the Mideast. Garcia alleged in court papers that she received death threats after the
film was posted to YouTube and lost her job due to security concerns sparked by her appearance in the movie.
After YouTube refused to take down the clip, Garcia sued the company for
copyright infringement and sought a court order requiring the company to remove the material. Last year, U.S. District Court Judge Michael Fitzgerald in the Central District of California rejected
Garcia's arguments, ruling that she doesn't appear to actually own a copyright interest in the clip.
A 9th Circuit panel reversed Fitzgerald's ruling and ordered YouTube to take the clip
down. Google says that it plans to ask the entire 9th Circuit to rehear the case. While its request is pending, it is seeking a stay of the injunction.
The takedown order stunned Internet
law experts for a host of reasons. One is the breadth of the order, which applies to the entire 14-minute clip, even though Garcia only appeared in the video for five seconds. Another is that the
order was issued in secret -- a procedure that seems unprecedented in this type of situation. Also, the ruling appears to give actors unprecedented veto power over online clips they don't like,
according to copyright experts.
Google raises some of those same points in its motion for an emergency stay. “Under the panel’s rule, minor players in everything from Hollywood
films to home videos can wrest control of those works from their creators, and service providers like YouTube will lack the ability to determine who has a valid copyright claim,” Google argues.
“Absent a stay, Google, YouTube, and the public face irreparable harm because the panel’s order will gag their speech and limit access to newsworthy documents.”
company adds that the panel's “novel interpretation” of copyright law “will invite uncertainty and chaos for the entertainment industry, documentary filmmakers, amateur content
creators, and for online hosting services like YouTube, allowing bit players in movies, videos, and other media to control how and when creative works are publicly displayed.”
Internet experts agree with Google that the ruling creates a risk that anyone who appears in a clip will be able to persuade service providers to remove the material. “Before, a service provider
might have been able to ignore a particular request, as not coming from the rightsholder,” Andrew McDiarmid, a senior policy analyst with the Center for Democracy & Technology, tells
Online Media Daily
. “But this opinion suggests that that kind of request, from anyone involved in the video, may have some merit.