Google intends to fight a court order to remove a controversial anti-Muslim video from YouTube in the U.S.
The company plans to file for a hearing before a full nine-judge panel of the U.S. Ninth Circuit Court of Appeals after two of three judges on a smaller panel forced the company to take down the film, Innocence of Muslims, which caused uproar in the Islamic world in 2012.
The battle in the U.S. revolves around a copyright claim, and the case sheds light on some of the details of Google’s takedown procedures.
The copyright claim was brought by actress Cindy Garcia.
Garcia spent two days working on a film she was told would be an adventure movie called Desert Warrior.
“I played the role of a mother,” she says. “I was interacting with my husband — he wanted to give my daughter in marriage, and I was arguing with him about it.”
She didn’t hear about Desert Warrior again until she started getting calls from reporters a year later. She turned on the television and says she was shocked to hear President Obama “announcing that this 14-minute video caused the death of our ambassador and Navy SEALs, and my heart just sunk.”
It’s debatable whether the film played a role in the deaths of Americans in Libya. But there was violent reaction to the video in Islamic countries, such as Egypt. The film makes it seem as if Garcia’s character is saying that Muhammad, the prophet of Islam, is a child molester. In the movie, there’s a shot of Garcia’s face and then the camera moves to the face of the actor who plays her husband. Then, the viewer hears a female voice that appears to be from Garcia’s character attacking Muhammad.
Garcia and her friends and family soon became a target. She recalls emails saying, “The last face you’re going to see will be mine; I’m going to cut your head off and put it on a pole; I’m going to rape your children.”
Garcia helped found an orphanage in Malawi and she says she can no longer travel there or anywhere safely.
Her appearance in the film is brief, but it was one of its most controversial moments. Garcia sent several takedown notices to YouTube asserting that she had a copyright in her performance.
According to her attorney Cris Armenta, “The United States copyright act says that once your performance is fixed in a tangible expression, like on film, you have a copyright. It’s akin to someone writing a poem.”
Google refused to pull the video. The company wouldn’t talk on tape to NPR, but during arguments in front of the three-judge panel of the Ninth Circuit, Google attorney Timothy Alger said, “Google and YouTube take very seriously their role as a forum for free speech. And if YouTube takes down just because of the say so of someone that had a five-second appearance in a film like this, then where do we stop?”
Google worries that all kinds of people with bit roles will try and assert their rights if Garcia wins this case.
The actual trial hasn’t happened yet. But in its preliminary injunction, the court concluded that Garcia was likely to prevail and that keeping the video up was causing her irreparable harm.
The merits of Garcia’s case are being hotly debated among copyright attorneys. The case also raises questions about YouTube’s takedown procedures.
YouTube is not a totally open platform. The company blocks pornography and hate speech. Armenta, Garcia’s attorney, says Google takes down videos when record labels assert a copyright interest. Usually, the company doesn’t put them back up unless the other party fights the claim (the makers of Innocence of Muslims never disputed Garcia’s copyright claim).
“In this case,” says Armenta, “Google has taken a dramatic, unprecedented public stance to fight tooth and nail to try to keep the content up and trying to recast this dialogue as a First Amendment dialogue when that is just so intellectually dishonest on every level because it’s not consistent with what Google and YouTube have done in the past.”
Attorney Corynne McSherry of the Electronic Frontier Foundation says this video isn’t like every other video in the past. In support of Google’s fight to keep the video up, she asks how the public can have an effective dialogue if it can’t see the film.
“We have this video that is the center of any number of actually different controversies,” McSherry says. “We’ve got Benghazi, we’ve got complaints from the State Department. We’ve got all these different debates that this video is the center of.”
Google says it has taken down the video in Muslim countries around the world, among them Egypt and Libya, where the company says it is complying with local laws.
Still, if the film is put back up in the U.S. and other Western countries, actress Garcia says, she worries it will continue to turn her life upside down. Now another actor in the film has also filed a takedown claim.
Garcia says she will persist in this case if only to make it clear to everyone that she did not say the words that this filmmaker put in her mouth.