It's an old legal adage that bad facts lead to bad legal decisions, and today we've got a classic example in Garcia v. Google—the "Innocence of Muslims" case. Based on a copyright claim that is dubious at best, the Ninth Circuit Court of Appeals has ordered Google to take offline a video that is the center of public controversy. We can still talk about it, but we can't see what we are talking about. We're hard-pressed to think of a better example of copyright maximalism trumping free speech.
For those who haven't been following this, the case was brought by an actress, Cindy Lee Garcia, who was tricked into performing in a short anti-Islamic film (she was told the film was about something very different) and, as a result, found herself subject to death threats. Bad facts, right? Here's the bad law part: Garcia then filed a lawsuit against Google and several others, claiming the video infringed her copyright in her performance (approximately 5 seconds of a 13 minute video). Then she asked the court to require Google to take the video down. The district court wisely refused, noting that Garcia's copyright interest was unclear at best. Garcia appealed, and today the Ninth Circuit agreed with her, and ordered Google to take down all copies of the video and take reasonable steps to prevent further uploads.
How is this decision wrong? First, the ruling blows past the First Amendment concerns with the time-worn observation that "the First Amendment does not protect copyright infringement." Of course it doesn't, but neither are copyright cases immune from the same balancing test that applies to any injunction. And the standards for this kind of injunction—a classic prior restraint—are particularly high. Indeed, as the Supreme Court has observed repeatedly, injunctions that shut down speech are particularly disfavored. Court after court has held that they should not be issued where, as here, the case is "doubtful" but only where the law and the facts clearly favor an injunction.
Second, the merits of this case are indeed doubtful. Very doubtful. Garcia is claiming a copyright interest in her brief performance, a novel theory and one that doesn't work well here. After all, Garcia herself admits she had no creative control over the movie, but simply performed the lines given to her. There may be a context where an actor could assert some species of authorship, but this doesn't seem to be one of them. Movie makers of all kinds should be worried indeed.
There are other problems with the legal analysis, but the decision is equally if not more troubling for the signal it sends. Based on nothing more than a tenuous (at best) copyright claim, the court has ordered a service provider to censor a video that has been the subject of considerable debate and comment, with only the most cursory analysis of the speech harms it will cause. If Garcia had brought a claim under virtually any other theory, we expect the court would have taken more care. Unfortunately, it seems copyright exceptionalism has won the day.
