The Ninth Circuit issued a very troubling ruling ordering that the infamous “Innocence of Muslims” video be taken down based on one actress’s claim to copyright based on her presence in five seconds of the video. (Order here. Read more: here, here, here.)
Last year, I wrote a book on Internet freedom. In that book, I discussed the threat that over-broad copyright law poses to free expression online (among other threats). This case is a perfect–and unfortunate–example of how copyright law can sometimes censor more speech than any other law.
In the book, I discussed how the US government could not censor “Innocence of Muslims,” even though it was an inflammatory, juvenile, deeply offensive “film” that sparked riots around the world. It actually wasn’t illegal in the US under the existing precedent of the Supreme Court, which would protect a video (speech) unless it incited imminent lawlessness or was a direct threat against specific people. The trailer was therefore protected under the First Amendment–even if the creator was foreign, and lacked First Amendment rights, we Americans had the right to receive the speech and watch it.
That trailer was available on the largest video platform, YouTube, owned by Google. So the U.S. State Department reportedly contacted the folks at Google and YouTube and asked them to take down the film. Google determined that the video wasn’t illegal in the US, didn’t violate Google’s terms of service, and therefore wouldn’t be taken down globally. It disabled access in only a few countries, where the video was illegal or the circumstances were considered special. Google received a mixture of praise and sympathy from free speech advocates for favoring freedom of speech in the face of a difficult situation; after all, it’s easy to be committed to free speech only when it’s not difficult.
Now, years later, the video has finally been ordered taken down by a US court. The order, however, formally has nothing to do with the movie’s offensiveness. It has everything to do with copyright law. An actress in the trailer had received death threats for being in the trailer. She also was conned by the film’s producer; she had no idea the plot or that the producer would dub over the actors’ lines. She’s very sympathetic. This feels like a case where “good facts could make bad law”–and it is. The court ruled that she had a copyright interest only in her own acting (no other part of the film) and largely because the producer lied to her about the part.
The greater stakes of this ruling are disastrous for free speech for a few reasons. People who are merely in 5 seconds of a video and had no control over its script, shooting, or editing, shouldn’t have a copyright interest to take down a video. If that were the case:
- Lots of people will be able to sue to takedown videos.
- Lots of people will not even need to sue–they’ll just send DMCA takedown notices to take down videos.
- Governments could likely work with potential copyright-holders to get videos taken down that they couldn’t otherwise have taken down.
- Legitimate movie producers and actors would face increased uncertainty about who has copyrights in a movie.
- Oh, and did I mention you can remove speech, really important speech from a historical perspective? This movie in particular is a historical record of the protests it spurred and of the free speech debate it catalyzed.
This would create what law professors call a “tragedy of the anti-commons“–a situation where a lot of people have multiple competing pseudo-property rights over the same work.* You need permission from a huge number of people to use the work. Any one of them can veto the use. So, in the end, works aren’t available–a problem when those works are speech.
Even though the US government failed to remove this video for its offensiveness, copyright law can do the trick.
*(It’s the flip-side of the problem called the tragedy of the commons–when nobody has a property right in a piece of property.)
**I do legal work for Google, particularly on free speech and copyright issues. (See here and here.) I didn’t work on this case.