No Twisting Copyright Law to Remedy Other Tort Injuries

Cindy Lee Garcia agreed to act in the film, “Desert Warrior.”  The film’s producer dubbed blasphemous language into Garcia’s part and renamed the film “Innocence of Muslims.”  Garcia received death threats after the film went viral on You Tube.  Garcia sued Google for copyright infringement to force Google to take the film down.  The district court ruled in Google’s favor.  A three judge panel from the Ninth Circuit Court of Appeals disagreed and ordered Google to take down the film.  The Ninth Circuit sitting en banc agreed with the district court’s initial ruling and dissolved the earlier injunction.

As Garcia characterizes it, “the main issue in this case involves the vicious frenzy against Ms. Garcia that the Film caused among certain radical elements of the Muslim community.” We are sympathetic to her plight. Nonetheless, the claim against Google is grounded in copyright law, not privacy, emotional distress, or tort law, and Garcia seeks to impose speech restrictions under copyright laws meant to foster rather than repress free expression. Garcia’s theory can be likened to “copyright cherry picking,” which would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture without satisfying the requirements of the Copyright Act. Putting aside the rhetoric of Hollywood hijinks and the dissent’s dramatics, this case must be decided on the law.

(Opinion pdf page 8).

The Ninth Circuit en banc opinion discusses both copyright and injunction issues.  This post focuses on the Ninth Circuit’s copyright analysis.  I previously wrote about this case in Actress’ “Innocence of Muslims” Copyright Claim Forces Google to Take it Down

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HathiTrust Book Scanning Ruled Fair Use

The Second Circuit Court of Appeals upheld the district court’s decision that two of the three uses of copyrighted works by the HathiTrust Digital Library (HDL) are fair uses.  The three uses are full text search, access to the print-disabled and preservation.  Categorizing these uses as “fair uses” runs contrary to true fair use, according to Professor Jane C. Ginsburg.  My post, True Fair Use Is About Authorship and Nothing Else, further describes Professor Ginsburg’s position.  I agree with Professor Ginsburg that the uses upheld by the Second Circuit have nothing to do with authorship.  However, these uses benefit society and would not be allowed to continue if they weren’t found to be fair uses.  The greater question becomes how far should we extend copyright protection to benefit society when the legal analysis undertaken by the court doesn’t make sense from a legal theory point of view.

The HDL contains over ten million works contributed by colleges, universities and other nonprofit institutions.  The HathiTrust began in 2008, when thirteen universities agreed to allow Google to electronically scan their book collections and create a repository for the digital copies of the scanned works.  Authors and authors’ associations sued HathiTrust for copyright infringement.  The Second Circuit ruled that because third parties cannot file suit on behalf of authors under the Copyright Act, author associations based in the U.S. do not have standing to bring this suit.  Only the copyright owner can enforce the copyright.  Foreign author associations do have standing, though, and the Second Circuit proceeded with its analysis on that basis.  The Second Circuit did not discuss the standing of the individual author plaintiffs.

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Actress’ “Innocence of Muslims” Copyright Claim Forces Google to Take it Down

The Ninth Circuit Court of Appeals ordered Google to take the inflammatory anti-Islamic film “Innocence of Muslims” down from You Tube and all platforms it controls and to take reasonable steps to prevent additional uploads.  The Ninth Circuit’s order results from actress Cindy Lee Garcia’s copyright infringement claim against Google.  Garcia prevailed in her appeal of the district court’s denial of her preliminary injunction motion to order Google to remove the film from You Tube.  The Ninth Circuit ruled that Garcia was likely to succeed on the merits of her copyright claim against Google, that Google’s ongoing infringement caused Garcia irreparable harm and that the balance of the equities and the public interest tipped in Garcia’s favor.

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