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YouTube Asked To Remove 'Innocence Of Muslims'

Way back in 2012, Salman Rushdie had called it a "piece of garbage", President Obama had appealed for its removal, his administration initially blaming it for the deadly September 2012 protests at the American embassy in Benghazi, Libya that resulted in the killing of the US Ambassador to Libya, but YouTube had refused to take off the Innocence of Muslims, a purported documentary on Prophet Mohammed's life, citing USA's freespeech provisions.

But finally it was copyright and not any perceived hurt to any religious community that prevailed as a federal US judge ordered that YouTube must take it down and the order of the 9th U.S. Circuit Court of Appeals was complied with by YouTube, resulting in taking down the controversial film.

The court found the film’s producer and director, Mark Basseley Youssef (aka Sam Bacile), duped actress Cindy Lee Garcia into appearing in the film and infringed her copyright to her role. The ruling addressed only the copyright issue, not the film's content, which YouTube has contended did not violate its terms of service.

“Garcia’s performance was used in a way that she found abhorrent and her appearance in the film subjected her to threats of physical harm and even death,” Chief Judge Alex Kozinski wrote for the majority court.

“Despite these harms, and despite Garcia’s viable copyright claim, Google refused to remove the film from YouTube.”

This is how the court summed it up Garcia's charges:

The film's writer and producer, Mark Basseley Youssef — who also goes by the names Nakoula Basseley Nakoula and Sam Bacile — cast [Cindy] Garcia in a minor role. Garcia was given the four pages of the script in which her character appeared and paid approximately $500 for three and a half days of filming. “Desert Warrior” [the title of the film as Youssef described it to Garcia] never materialized. Instead, Garcia’s scene was used in an anti-Islamic film titled “Innocence of Muslims.” Garcia first saw “Innocence of Muslims” after it was uploaded to YouTube.com and she discovered that her brief performance had been partially dubbed over so that she appeared to be asking, “Is your Mohammed a child molester?”

These, of course, are fighting words to many faithful Muslims and, after the film aired on Egyptian television, there were protests that generated worldwide news coverage. An Egyptian cleric issued a fatwa, calling for the killing of everyone involved with the film, and Garcia soon began receiving death threats. She responded by taking a number of security precautions and asking that Google remove the video from YouTube.

In all, Garcia filed eight takedown notices under the Digital Millenium Copyright Act. See generally 17 U.S.C. § 512. When Google resisted, she supplied substantive explanations as to why the film should be taken down. Google still refused to act, so Garcia applied for a temporary restraining order seeking removal of the film from YouTube, claiming that the posting of the video infringed her copyright in her performance....

In its opinion, the majority opinion went on to argue:

Garcia was told she’d be acting in an adventure film set in ancient Arabia. Were she now to complain that the film has a different title, that its historical depictions are inaccurate, that her scene is poorlyedited or that the quality of the film isn’t as she’d imagined, she wouldn’t have a viable claim that her implied license had been exceeded. But the license Garcia granted Youssef wasn’t so broad as to cover the use of her performance in any project. Here, the problem isn’t that “Innocence of Muslims” is not an Arabian adventure movie: It’s that the film isn’t intended to entertain at all. The film differs so radically from anything Garcia could have imagined when she was cast that it can’t possibly be authorized by any implied license she granted Youssef.

A clear sign that Youssef exceeded the bounds of any license is that he lied to Garcia in order to secure her participation, and she agreed to perform in reliance on that lie. Youssef’s fraud alone is likely enough to void any agreement he had with Garcia. See 26 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 69:4 (4th ed. 2003). But even if it’s not, it’s clear evidence that his inclusion of her performance in “Innocence of Muslims” exceeded the scope of the implied license and was, therefore, an unauthorized, infringing use.

The situation in which a filmmaker uses a performance in a way that exceeds the bounds of the broad implied license granted by an actor will be extraordinarily rare. But this is such a case. Because it is, Garcia has demonstrated that she’s likely to succeed on the merits of her claim.

The court went on to conclude:

Garcia has shown that removing the film from YouTube will help disassociate her from the film’s anti-Islamic message and that such disassociation will keep her from suffering future threats and physical harm…. Taking down the film from YouTube will remove it from a prominent online platform — the platform on which it was first displayed — and will curb the harms of which Garcia complains.

Experts are watching the fall-out of the verdict with much interest, as while YouTube has complied, the verdict is based on Garcia’s copyright-protected performance. Observers say that if the video is reposted with that performance removed, Garcia would have no legal basis for objecting.  Also, significantly, Google made no fair use argument in its Ninth Circuit brief, and the panel didn’t discuss fair use.

See the full text of the Opinion of UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT in Garcia v. Google, Inc. (9th Cir. Feb. 26, 2014):

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