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
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.
Critics, including 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.