Anti-Islamic video could go back on YouTube after copyright ruling

The video, while controversial, cannot be removed on copyright grounds, judges ruled

YouTube's mobile app is pictured on October 17, 2013.

YouTube's mobile app is pictured on October 17, 2013.

A woman who received death threats after appearing unwittingly in an anti-Muslim film on YouTube cannot require Google to remove it on the grounds that her performance was copyright-protected, a San Francisco federal appeals court ruled Monday.

The decision, a 10-1 vote by judges of the Ninth U.S. Circuit Court of Appeals, means one of the most controversial videos ever posted on YouTube can go back on the site after being removed last year.

In its decision, the court credited the opinion of the U.S. Copyright Office, which had refused to register plaintiff Cindy Lee Garcia's performance apart from the film. Her theory of copyright law would result in splintering a movie into many different works, making "Swiss cheese of copyrights," the judges wrote in their decision.

Garcia's claims, the judges wrote, would enable any movie contributor from a costume designer down to an extra to claim copyright in parts of a movie without satisfying the requirements of the Copyright Act.

In reactions to Monday's ruling, attorneys who work in copyright law called it a win for the public's right to know.

"The Ninth Circuit's en banc decision against granting an injunction in this case is a victory for free speech and the First Amendment. Copyright law is deliberately limited in its scope because its protections come at the expense of limiting the public's freedom of speech," said Raza Panjwani, policy counsel at Public Knowledge, a Washington, D.C.-based nonprofit, who focuses on copyright and telecommunications law.

"Copyright law should not trump the public's right to discuss, criticize, or comment or report on that expression," he said via email.

In 2011, Garcia responded to a casting call for a film entitled "Desert Warrior," a thriller set in ancient Arabia, according to the court ruling on Monday. She was cast in a cameo role, for which she earned US$500.

However, through dubbing, the film's producers transformed her five-second acting performance into statements against the Prophet Mohammed as part of a different movie entitled "Innocence of Muslims." Garcia received death threats, and the movie is said to have sparked violence in the Middle East after its trailer was uploaded to YouTube in 2012.

That same year, Garcia sued Google and writer-director Mark Basseley Youssef in federal court, alleging copyright infringement. She sought to bar Google from posting "Innocence of Muslims" on YouTube or any other Google-run site. The court denied her motion for a preliminary injunction, because she did not demonstrate that removing the video would prevent alleged harm.

The court's ruling on Monday dissolves a previous injunction by a three-judge panel requiring Google to remove the video, instead reinstating the earlier decision by the district court.

The judges' decision, they wrote in the Monday ruling, does not mean that a plaintiff like Garcia couldn't have sought an injunction under different legal theories, like the right of publicity and defamation.

Cris Armenta, an attorney for Garcia, did not immediately respond to a request for comment.

In a statement, a YouTube spokesman said, "We have long believed that the previous ruling was a misapplication of copyright law. We're pleased with this latest ruling by the Ninth Circuit."

However, Alex Kozinski, the lone dissenting judge in Monday's ruling, was not pleased. "In its haste to take Internet service providers off the hook for infringement," he wrote, "the court today robs performers and other creative talent of rights Congress gave them."

Zach Miners covers social networking, search and general technology news for IDG News Service. Follow Zach on Twitter at @zachminers. Zach's e-mail address is zach_miners@idg.com

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