A coalition of news organizations is asking the 9th Circuit Court of Appeals to reconsider an order requiring Google to take down the clip “Innocence of Muslims.”
The Los Angeles Times Communications, New York Times Company, Washington Post and other media companies argue in new court papers that the free-speech ramifications of the takedown order
“extend far beyond the particular facts of this case.”
“By ordering a media company to take affirmative steps to remove content ... the panel majority's actions could
encourage subjects of critical or unflattering news coverage to seek similar relief, using copyright law to secure removal of the objectionable content while trying to evade the constitutional
protections against prior restraints,” the companies write in letter to the court filed on Thursday.
The organizations add that it is “not uncommon” for people to make
copyright claims when their true goal is “aimed at suppressing news reporting.”
The news companies are seeking to weigh in on a high-stakes legal battle between Google and
actress Cindy Garcia, who says she was duped into appearing in the 13-minute clip “Innocence of Muslims.”
When the clip appeared on YouTube in September 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. She also says
she was tricked into appearing in the clip after answering a Backstage
ad for a film called "Desert Warrior," which she thought was an adventure movie set in ancient Egypt.
the clip surfaced, Garcia asked YouTube to remove it. The company refused, following which she sued for copyright infringement. 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.
Three weeks ago, a 9th Circuit panel reversed
Fitzgerald's ruling by a vote of 2-1 and ordered YouTube to take the clip down. That order was issued in secret and only made public one week after it took effect. The same panel that issued the order
later amended it to allow Google to post a version of the clip, provided that Garcia's performance was edited out.
Google is now asking the entire 9th Circuit to rehear the case, and to
immediately lift the takedown order.
The takedown order surprised many Internet law experts for several reasons, including that it was initially issued under seal. The media organizations
say in their letter that the secrecy of the order in itself shows why the entire appellate court should hear the case.
“There is no compelling explanation for the secrecy order. The
panel's statement that it was acting to prevent a rush to proliferate the video before its removal from YouTube overlooks the fact that the video had been available online since July 2012, and that it
remains available on other websites unaffected by the injunction,” they argue. “These sealed rulings and gag orders therefore only further demonstrate the novelty of this unprecedented
order, while underscoring the need for ... review.”
Google -- as well as others, like the digital rights group Center for Democracy & Technology -- also have said that the order
appears to give actors new veto power over clips. The company says that allowing actors to claim a copyright in their performance would “wreak havoc on movie studios, documentary filmmakers and
creative enterprises of all types by giving their most minor contributors potential control over their works.”