Feb 13, 2019
Come Read So Much Law About Google Having To Take Down Benghazi-Inducing Film ‘Innocence Of Muslims’
Want to spend your afternoon both angry and confused? This post is for you! Yesterday, the 9th Circuit issued a decision requiring Google to take down all copies of Innocence of Muslims, a film you may remember as a Breitbart fan favorite that also caused BENGHAZI!!! How can the court order this? Let’s lawsplain.
First, let’s take a trip back in time and remember the glorious days of Muslin-bashing this film aspired to. A very not nice man named Nakoula Basseley Nakoula lied, cheated, and stoled his way into making a film that said Mohammed was a fraud and a child molester. Nakoula didn’t just use a fake name and therefore violate the terms of his probation making the film. Naw, mang, he went BIG and told the actors that he hired for the film that he was making an entirely different not-Mohammed-bashing movie and then later dubbed in dialog to make it look like the actors were getting their hate on about the prophet.
While answering a casting call for a low-budget amateur film doesn’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa. But that’s exactly what happened to Cindy Lee Garcia when she agreed to act in a film with the working title “Desert Warrior.”
The film’s writer and producer, Mark Basseley Youssef—who also goes by the names Nakoula Basseley Nakoula and Sam Bacile—cast Garcia in a minor role. Garcia was given the four pages of the script in which her character appeared and paid approximately $500 for three and a half days of filming. “Desert Warrior” never materialized. Instead, Garcia’s scene was used in an anti-Islamic film titled “Innocence of Muslims.” Garcia first saw “Innocence of Muslims” after it was uploaded to YouTube.com and she discovered that her brief performance had been partially dubbed over so that she appeared to be asking, “Is your Mohammed a child molester?”
That is not a nice thing to do to your actor! Garcia sued to get all the copies of Innocence taken down from Google, probably on account of how people across the globe now hated her for doing and saying something she never actually did or said. There is, however, no cause of action against Google for accidentally becoming part of a jihad-inducing film, so Garcia sued under a copyright theory.
Garcia’s theory is that (1) she owns the copyright to her own performance, (2) Youssef [aka Nakoula] never properly acquired the rights to that performance — for instance, because there was no express assignment of rights — and therefore (3) a court should order Google to take down the video that infringes Garcia’s copyright.
This would be a total nontroversy if Garcia’s performance hadn’t been incorporated into a longer work and if Innocence hadn’t become the film that sparked both a riot and a thousand stupid thinkpieces from Breitbartian minions who had to yell FREE SPEEEEEECCCCHHHH all over the place about the movie because of course Obama the Muslim personally ordered the filmmaker arrested or something. The 9th Circuit acknowledged that the whole situation was a big ball of complicated mess but that you can’t really use the First Amendment as a shield against a copyright claim WHICH IS ACTUALLY TOTALLY TRUE.*
Youssef lied to Garcia about the project in which she was participating. Her performance was used in a way that she found abhorrent and her appearance in the film subjected her to threats of physical harm and even death. Despite these harms, and despite Garcia’s viable copyright claim, Google refused to remove the film from YouTube. It’s hard to see how Google can defend its refusal on equitable grounds and, indeed, it doesn’t really try. Instead, it argues that an injunction would be inequitable because of the overwhelming public interest in the continued hosting of “Innocence of Muslims” on YouTube.
The problem with Google’s position is that it rests entirely on the assertion that Garcia’s proposed injunction is an unconstitutional prior restraint of speech. But the First Amendment doesn’t protect copyright infringement. Because Garcia has demonstrated a likelihood of success on her claim that “Innocence of Muslims” infringes her copyright, Google’s argument fails.
Oh man we totally have feels about this, as does everyone else in the entertainment, law, or jihad business. On the one hand, the idea that you can get something taken down from the Internet because you were some tiny part of it is fairly suck from a freedom of speech standpoint and is going to lead to unintended consequences spilling all over the place as people use it to get Google to take down anything that makes them sad. This is a Bad Thing because we are pretty much free speech maximalists here at Happy. On the other hand, copyright is copyright, yo, and you own your shit and someone else shouldn’t get to take your work and use it without your license or consent, which is what happened here. See? FEELS. But bqhatevwr, because this litigation is going to go on and on and on so we will have many further opportunities to work out our shit.
For now, Google has 24 hours starting from yesterday to scrub all copies of the film from YouTube, so if you had been hoping to see a crudely made piece of violence-instigating crap founded entirely upon deceiving the people involved with the project, you’re probably out of luck. Sorry not sorry.
*Fair use exception blah blah blah blah blah blah blah.