Netflix, Facebook and Wordpress
are among a host of outside companies that are siding with Google in a dispute about whether the company should be forced to take down the controversial clip for alleged copyright violations.
Netflix and the others are asking the 9th Circuit Court of Appeals to reconsider a decision against Google issued in February by a three-judge panel. The judges in that case ruled 2-1 that
Cindy Lee Garcia -- an actress who says she was duped into appearing in the video -- potentially had a copyright interest in her performance. Garcia says she received death threats after the 13-minute
clip appeared in mid-2012 and asked that Google remove it on the grounds that it infringed her copyright.
The appellate panel ordered Google to take down the clip and use all reasonable
efforts to prevent its reappearance on YouTube. That ruling came as a surprise to many industry observers, who say it marks a dramatic expansion of copyright principles.
Netflix, say the ruling could enable just about anyone who appears in an online video to assert a copyright interest in the clip and demand its removal.
“By creating a new species of
copyright, and empowering essentially any performer in a motion picture or television program to both sue downstream distributors and enjoin any use of her performance of which she does not approve,
the panel majority risks wreaking havoc with established copyright and business rules on which all third-party distributors, including Netflix, depend,” Netflix argues in its friend-of-the-court
brief, filed on Monday. “While Netflix has no doubt that Ms. Garcia was mistreated by the filmmakers here, bad facts should not be allowed to make bad law: This Court should not upend copyright
law in its search for a remedy.”
A coalition of Web companies, including Facebook, Twitter, Yahoo, eBay and Gawker Media, add in a separate friend-of-the-court brief that the panel's
order is “unworkable” and “poses a serious threat to online service providers’ businesses.”
Those companies appear particularly concerned with the portion of
the court's order that requires Google to prevent the clip from re-surfacing on YouTube. “Court-ordered technical measures to prevent all future unlawful appearances of a work, without the
active participation and initiative of rightsholders in a notification system, will inevitably prevent many lawful appearances of a work,” they argue. “While large service providers may
have at their disposal various content recognition tools, even the most advanced of these tools have technical flaws.”
Two separate groups of law professors, including Santa Clara
University's Eric Goldman, also filed friend-of-the-court briefs urging the court to reconsider. The brief filed by Goldman argues that the order against Google could encourage other people who don't
like online material about themselves to raise questionable copyright claims in order to suppress speech.