Garcia and Google Continue to Spar Over “Innocence of Muslims”

[Originally posted on the American University Intellectual Property Brief Blog on April 15, 2014, CC-BY]

The “Innocence of Muslims” saga is far from over.

As Sarah O’Connor wrote last month, the Ninth Circuit issued an order which requires “Google to take down all copies of ‘Innocence of Muslims’ from YouTube and any other platforms within its control and to take all reasonable steps to prevent further uploads.” This order is highly controversial, as it not only goes beyond the scope of the so-called “take down” provisions in Section 512 of the Digital Millennium Copyright Act but also found that actors’ performances, when fixed, meet the minimum requirements to be an independently copyrightable work of authorship.

Since the controversial opinion was handed down in February, this docket has been busy. On February 27, the day after the opinion was released, Google filed an emergency motion asking the court to stay the order pending the disposition of their petition for rehearing en banc. This motion was denied the next day, and the court clarified that the take down order applied only to copies of “Innocence of Muslims” that included Cindy Lee Garcia’s performance.

On March 12, Google filed a petition for rehearing en banc arguing against both the injunction and the court’s finding that Garcia holds a copyright in her performance. Google attached a series of correspondence between Garcia’s counsel and the Copyright Office, in which Robert Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practices, refused registration in Garcia’s claim in her individual performance in the motion picture. Kasunic explained that “[i]f her contribution was neither a work made for hire nor the requisite authorship to warrant a claim in a joint work, Ms. Garcia has no separable claim to copyrightable authorship in her performance.” This petition is still pending before the court.

While this petition was pending, Garcia filed an emergency motion for a finding of contempt. Garcia claimed that Google failed to comply with the take down order because a copy was available on their worldwide platform and thus viewable outside the country. Additionally, Garcia challenged Google’s assertion that compliance with this broad order is difficult. Her motion suggested that “[f]or Google, it is a pedestrian, technical exercise to take down those URLs, to hire an intern to just search for ‘Innocence of Muslims.’” Her motion sought sanctions to the tune of $150,000 per violation, presumably based on the statutory damages provisions in Section 504(c) of the Copyright Act. Garcia also asked that the court find Google in contempt for not deleting the posted videos, claiming that “merely disable[ing]” access to them is insufficient, and that the “snide message” displayed was a sign that Google was “ridiculing” the court’s authority and “thumbing its nose at the Court and making a mockery of our judicial system.”

Needless to say, Google filed a thorough response to the motion. Google’s response points out that Google has worked under “tremendous time pressure to develop a new method . . . to identify and block new uploads,” which is far beyond any legal obligation any online service provider would be under absent this order. Google also notes that Garcia’s assertion that this is a “pedestrian, technical exercise” “reflects a deep lack of technical understanding and vastly underestimates the burdens involved” in complying with such a “sweeping take-down, stay-down order.” Google adds that the one copy of the film Garcia cited in her motion “was identified by YouTube before Garcia brought it to Google’s attention and blocked it before she filed her motion.” Additionally, Google points out that the order doesn’t require that YouTube remove copies, but rather disable access to them, citing Section 512. As Google says, “[r]equiring deletion would turn the preliminary injunction into a de facto permanent injunction by leaving YouTube unable to restore the videos if it ultimately prevails.” In response to assertions that copies of “Innocence of Muslims” can be found via search, Google notes that the order only requires removal of copies of the video from platforms under Google’s control, not links to third-party sites. Google notes that “Garcia’s fundamental complaint appears to be that ‘Innocence of Muslims’ is still on the Internet. But Google and YouTube do not operate the Internet.” On March 31, the court denied Garcia’s motion in a one sentence order.

Hopefully the Ninth Circuit will grant Google’s petition for rehearing later this month. While this case has been amusing to watch, bad facts make for bad law.

Notice-and-Takedown in the Spotlight

[Originally posted on the American University Intellectual Property Brief Blog on March 25, 2014, CC-BY]

This month, Section 512 of the Digital Millennium Copyright Act (DMCA) has been in the spotlight so much that some have branded it DMCA Month.

The operation of Section 512, which creates a safe harbor for online service providers for the infringing activities of their users, has been highly controversial among stakeholders. Service providers are overwhelmed by the sheer number of takedown notices they receive; as of March 23, 2014, Google reports receiving more than 23 million requests in the past month for URL removal from its search engine from over 4,000 copyright owners and nearly 2,000 reporting organizations. Meanwhile, rightsholders lament that they must seek out infringing content and that after allegedly infringing content is taken down, the same content is reposted elsewhere. Others are concerned about the frequency of takedown notice abuse and the failure of rightsholders to consider whether uses are non-infringing before sending takedown notices.

On March 13, 2014 the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on Section 512. The hearing included a heavy focus on the concept of a “notice and staydown” requirement, which is strongly supported by Representatives Judy Chu (D-CA) and Tom Marino (R-PA). However, the technical feasibility and free speech implications of such a system raise serious red flags. As Professor Lawrence Lessig recently reminded the world, not all uses of a copyrighted work are infringing, and many creators support legitimate unlicensed use of their works. In addition, according to at least one study, the recording industry earns more money from fan videos than from official music videos.

As Joel Thayer discussed, Google and Viacom announced in a joint statement on March 18th that they were settling the long-running lawsuit against YouTube. Viacom alleged that YouTube was ineligible for protection under Section 512 because there was knowledge of infringing content being shared on the service. However, the court consistently ruled against Viacom.

On March 20, 2014, the National Telecommunications & Information Administration (NTIA) and the United States Patent and Trademark Office (USPTO) convened the first meeting of the Multistakeholder Forum on the DMCA Notice and Takedown System. This process, which arises out of last summer’s Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy, is intended to enable stakeholders to come to a voluntary agreement about improving the operation of the existing process. One of the first issues to be tacked, standardizing notices, is relatively uncontroversial.

While these processes all look to deal with alleged infringement after the fact, none look to eliminate the cause. As I’ve written here before, there are serious questions about the validity of the numbers rightsholders use to demonstrate significant harm to their bottom line. There are also a significant number of more reputable reports stating that the best means to reduce infringement is to offer good legal alternatives to piracy. As Kevin Spacey said: “Give the people what they want. When they want it. At a reasonable price. And they’ll watch it, and they won’t pirate it.”