The video had flimsy production values and was just 14 minutes long, but internet service providers fear they will pay a lasting price for Innocence of Muslims. A court order to remove the anti-Islamic film from YouTube has paved the way for attempts to menace other creative visual works under cover of copyright, some legal experts have warned.
Cindy Lee Garcia, an actor who appeared in the video, last month convinced the ninth US circuit court of appeals in San Francisco that she had copyright to her role – as opposed to the filmmaker – and so could demand the video’s removal from YouTube. Google, which owns YouTube, has tried in vain to overturn the ruling, prompting concern that a precedent has been set.
“They and other internet intermediaries are worried about what this could mean down the line,” Corynne McSherry, intellectual property director at the Electronic Frontier Foundation, a San Francisco-based advocacy group, said on Friday.
“Not only does Google have to monitor all its systems, it has to prevent people uploading new copies of the video, possibly requiring snooping. It’s unprecedented.”
Google has been denied two emergency stay motions against the decision by a divided three-judge panel. It vowed to continue resisting. “We strongly disagree with this ruling and will fight it,” a spokesperson said in an emailed statement.
People who search for the video find a black screen with a short message from Google repeating its pledge to fight the decision. If the company fails to persuade the same judges to reverse their ruling its last resort will be the supreme court, which may choose not to hear the case.
“Hopefully the ruling will be treated as an outlier never to be repeated but the law doesn’t always work that way,” said McSherry.
Not all legal scholars expressed dismay. Jay Dougherty, a professor of law at Loyola Law School in Los Angeles, said fears of other, opportunistic copyright cases haunting the internet were overblown. “I’ve read that the sky is falling,” he said. “But I don’t think it’ll be that significant.”
Google’s legal battle is an unexpected epilogue to a saga that began in July 2011, when a low-budget film called Desert Warrior recruited actors to shoot a supposed Arabian adventure outside Los Angeles.
Unknown to cast and crew the producer, Mark Basseley Youssef, dubbed anti-Islamic dialogue in post-production and in July 2012 uploaded to YouTube 14 minutes of footage, a purported trailer, under the title The Real Life of Muhammad.
After being translated into Arabic as Innocence of Muslims it sparked violent protests across the Middle East, including a disputed role in the attack on the US diplomatic mission in Benghazi on 11 September 2012. Death threats were made against those involved in the video.
Google rebuffed US government requests to take it down. The search-engine giant encountered a more formidable opponent in Garcia, a part-time actor who was paid $500 for five seconds of screen time. Her lawsuit said she was duped into a film that threatened her livelihood and security – and infringed her copyright.
Judge Alex Kozinski, the chief of the ninth circuit, ruled that Garcia’s performance had the “minimal creative spark” to be deemed its own copyright-protected work. That right trumped first amendment free speech considerations, he said, and let Garcia limit where her work can be publicly performed.
McSherry said this set the bar very low for copyright since Garcia appeared fleetingly and recited lines written by someone else. A dancer in the background of a film, the intellectual property expert suggested, could use the same argument to try to claim copyright and control of distribution.
Hollywood has often clashed with technology companies over copyright but in this case they shared a common interest, said McSherry. “On this one they can be united.”
An additional concern was that Innocence of Muslims, however offensive and shambolic it was, was part of the historical record and should not be suppressed. Doing so could facilitate wider restrictions on free speech, said McSherry.
Other lawyers have echoed those criticisms and accused the court of judicial activism.
Dougherty, who runs the Loyola Law School’s entertainment and media law programme, disagreed and called the ruling consistent with copyright law. The court ruling cited a paper Dougherty published more than a decade ago.
Garcia was granted copyright because she was duped and thought her performance was for a different film – an unusual circumstance few other performers could claim, said Dougherty. The free speech implications were also narrow, he said, because the court did not order YouTube to remove the entire film, only the segment with Garcia.
“But service providers don’t like taking anything down,” he said.
Garcia’s lawyer did not respond to an interview request for this article. Basseley, who has been released after serving a jail term for an unrelated fraud case, could not be reached.