In a major decision about free speech online, a federal appellate court has ruled that actress Cindy Lee Garcia, who says she was duped into appearing in the incendiary film “Innocence of Muslims,” can't force Google to take down the clip.
The 10-1 decision vacates a February 2014 order requiring Google to remove the 14-minute clip.
“The takedown order was unwarranted and incorrect as a matter of law,” Circuit Judge Circuit Judge M. Margaret McKeown wrote today. “The mandatory injunction censored and suppressed a politically significant film -- based upon a dubious and unprecedented theory of copyright. In so doing, the panel deprived the public of the ability to view firsthand, and judge for themselves, a film at the center of an international uproar.”
The high-stakes legal battle -- which drew in Netflix, Facebook and numerous other Web companies -- stemmed from a lawsuit filed in 2012 by Garcia, who appeared for five seconds in the 14-minute clip.
Garcia said in court papers that she was tricked into appearing in the clip after answering a Backstage ad for the film "Desert Warrior," which she thought was an adventure movie set in ancient Egypt. Garcia also says her dialogue was dubbed over, and that she didn't utter the “hateful” words attributed to her character.
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 sparked by her appearance in the movie.
Garcia asked Google to remove the clip in 2012. After the company refused, she sued in federal court for alleged copyright infringement.
Her theory rested on the view -- opposed by many legal experts -- that she owned a copyright in her performance. U.S. District Court Judge Michael Fitzgerald in the Central District of California dismissed Garcia's complaint soon after she filed it.
She appealed to the 9th Circuit, which surprised many observers by initially ruling in her favor in February of 2014. At the time, a three-judge panel of the appellate court entered a preliminary injunction requiring Google to take down the video pending a trial on the copyright questions.
Google then asked the entire court to reconsider. Numerous outside companies -- including Netflix, Facebook, Twitter, Yahoo and eBay -- backed that request. Netflix argued in court papers that the ruling could enable almost anyone who appears in an online video to assert a copyright interest in the clip and demand its removal, while Facebook said the order was “unworkable” and “poses a serious threat to online service providers’ businesses.”
Today, an 11-judge panel of the 9th Circuit reversed the earlier decision and ruled that Garcia can't use copyright principles to get a takedown order against Google.
“Although we do not take lightly threats to life or the emotional turmoil Garcia has endured, her harms are untethered from -- and incompatible with -- copyright and copyright’s function as the engine of expression,” McKeown wrote in the majority opinion.
She added that for Garcia to claim a copyright interest in her performance would be “a logistical and financial nightmare.”
“It would turn cast of thousands into a new mantra: copyright of thousands,” she wrote.
McKeown also said that Garcia potentially might bring claims under privacy laws, but noted that U.S. laws don't require search engines to remove embarrassing material.
“Ultimately, Garcia would like to have her connection to the film forgotten and stripped from YouTube. Unfortunately for Garcia, such a 'right to be forgotten,' although recently affirmed by the Court of Justice for the European Union, is not recognized in the United States,” she wrote.
Circuit Judge Alex Kozinski -- who authored last year's opinion siding with Garcia -- dissented from today's ruling.
“In its haste to take internet service providers off the hook for infringement, the court today robs performers and other creative talent of rights Congress gave them” he wrote.
“Our injunction has been in place for over a year; reports of the internet’s demise have been greatly exaggerated,” Kozinski added.