Instead of the action flick “Desert Warrior,” the director created “Innocence of Muslims,” an inflammatory piece that sparked controversy -- and was blamed for causing riots in the Middle East -- when it appeared on YouTube in mid-2012. Garcia says that she received death threats as a result of her five-second appearance in the film. She also says that her dialogue was dubbed to make it appear as if she were uttering highly offensive remarks.
Understandably, she wanted to make the film to disappear from the Web. To accomplish that, she sued Google for copyright infringement, on the somewhat creative theory that she owned a copyright in her performance. A trial judge threw out the case, but last month the 9th Circuit Court of Appeals reinstated the lawsuit by a 2-1 vote. What's more, that court ordered Google to take down the clip and use reasonable efforts to prevent it from reappearing.
Chief Judge Alex Kozinski, who wrote the decision, clearly sympathized with Garcia. “While answering a casting call for a low-budget amateur film doesn’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa,” he wrote. “But that’s exactly what happened to Cindy Lee Garcia when she agreed to act in a film with the working title 'Desert Warrior.' ”
But his injunction against Google is exceptionally problematic. First of all, as Google pointed out in court papers, YouTube isn't the only platform that hosts the clip. In other words, even if the clip was to disappear from YouTube and never again resurface, people would still be able to view it online.
Secondly, the Digital Millennium Copyright Act doesn't appear to allow for injunctions as broad as the one the court issued. Instead, that law provides for injunctions to remove content from specific online locations -- that is, specific URLs where infringing clips are located.
Third, and most troubling to free-speech advocates, the order is a prior restraint -- that is, an order censoring content before there's been a trial to determine whether it's legal. Prior restraints are almost always unconstitutional.
Google is currently asking the entire 9th Circuit to rehear the matter. A number of other companies and groups have said they intend to file friend-of-the-court briefs, or have already done so. Among them is the advocacy group Public Citizen, which points out in court papers that Garcia's request for an injunction doesn't center on the typical concerns of copyright owners, but from the belief that the director defrauded her and libeled her.
“She seeks injunctive relief not to protect the value of her creative work and its copyrighted fixation, but to suppress the work because, as manipulated by the individual defendants, she and others find the content deeply offensive -- understandably so -- and she was personally endangered as a result. This is not copyright injury, but rather libel injury, or fraud injury,” the organization writes.