You all remember The Innocence of Muslims, right? It was the awful low budget movie that was at least partially responsible for the violence in Benghazi which resulted in the deaths of four Americans. Made by filmmaker Basseley Nakoula as an Arabian Nights style epic called Desert Warrior, Nakoula later dubbed in offensive anti-Muslim dialogue unbeknownst to the stars, which was first noticed by our own Sarah Abdurrahman. Now, one of the stars of the movie is taking a novel legal approach to try and keep the film from being seen.
Actress Cindy Garcia, who appears for just a few seconds in the movie, has sued both its creator (who is currently in jail for a probation violation) and Google to have the movie taken down, saying she owns the copyright on the scene in which she appears. She argues that Nakoula's dubbing of the movie constitutes copyright infringement, partly because Garcia never signed any documents granting license to her performance to Nakoula. Late last month, the 9th Circuit Court of Appeals agreed that because of Nakoula's deceptive overdubbing of the film, he forfeits the copyright over her performance and Google must remove the movie from YouTube.
Google has complied with the injunction, but that did not stop Garcia from filing a contempt motion against Google last week, saying it was not taking seriously the job of removing copies of the film. Google responded over the weekend saying the contempt filing is bogus:
We will not mince words: These allegations are false. To Google’s knowledge, there are no copies of “Innocence of Muslims” available on YouTube, nor were there when Garcia filed her motion. And Google has worked diligently to comply with the Court’s injunction. It has blocked every copy of the video that it has found through automated and manual searches.
This has been a hot and contentious ruling. The folks at places like The Electronic Frontier Foundation and TechDirt have been following this case for a while, and they believe it sets a very bad precedent because it has allowed the censorship of a video based on what seems like a fairly tenuous claim.
I feel a lot of sympathy for Garcia. Nakoula dubbed the movie to make it look like she was saying "Is your Muhammed a child molester?" She says appearing in this film has essentially ruined her life, and that she is now under a death warrant by a radical Muslim cleric.
All the same, this is a bad application of copyright law. This precedent-setting decision will make it easier in the future for people unhappy with perfectly legitimate representations in media to sue to get that media removed. This film is, at this point, historically significant and should be preserved in some way that makes it accessible, regardless of whom it offends.
In the dissenting opinion in the 9th Circuit, Judge N.R. Smith argued “while Garcia has provided undisputed evidence of past threats and injuries, she has failed to link her allegations of future harm to potential future viewings of the film on YouTube”. This feels correct to me, and I firmly believe that an injunction requiring Google to block this video going forward is injurious to the public good.