
Google Loses Emergency Bid To Keep “Innocence Of Muslims” Film Online - joshfraser
http://techcrunch.com/2014/03/02/google-loses-emergency-bid-to-keep-innocence-of-muslims-film-online/
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shalmanese
I'm not a lawyer but, reading through the brief, the decision doesn't seem so
bad or consequential as it may seem.

The crux of the matter seems to be that Youssef, the director, did not make
Garcia sign any form of written contract before filming her scenes.

A standard work for hire contract would have relinquished Garcia's copyright
claims to the work and none of this mess would have happened which is exactly
why every professional organization insists on contracts being signed.

Absent a contract, the court is forced to determine what the implied contract
is. Now, if Youssef had hired Garcia to work on "Innocence of Muslims", the
court may have determined that for a 5 second appearance, a work for hire was
implied and Garcia's copyright claim does not outweigh Youssef's.

But that's not what happened, Youssef hired Garcia to work on "Desert
Warrior", a film that was described as materially different from "Innocence of
Muslims". Given that, it becomes tricky to determine whether the implied
contract was broad and general or towards a specific piece of work. The lower
court interpreted it as general, the appeal disagreed. I can see both sides of
the argument but, given that no contract was signed, it seems correct to me to
give the maximum latitude towards Garcia.

The court decision though, is that only the 5 seconds that Garcia appeared on
film could be copyrighted by her. Youssef is still perfectly free to produce a
cut in which her 5 seconds is excised or replaced and re-upload it to Youtube
and Garcia would have no more claim to attempt a takedown.

So, in summary, this case only creates a precedent if:

* No work for hire contract is signed

* You materially misrepresent or misappropriate the nature of work to be performed

* The person later files a copyright claim

* The work can't easily be altered to excise the copyrighted parts.

Again, I'm not a lawyer so I may be reading and interpreting the case wrong
but it seems largely reasonable.

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dfc
No need to inform us that you are not a lawyer. That was made quite clear when
you gave us your take on the decision after reading the _brief,_ never even
mentioned first amendment concerns (good or bad) and failed to limit the scope
of the precedent variable to the Ninth Circuit.

~~~
shalmanese
I'd love to be educated. This seems to be primarily an IP case. What are the
first amendment concerns?

~~~
icebraining
I'm not a lawyer either, but from having read a few cases in the past, it
seems that preliminary injunctions - like the one issued to force Google to
take the film down - that prevent speech are usually considered violations of
the First Amendment except in extreme cases.

Whether this applies to copyright cases is still unclear, but it seems the
Supreme Court has taken that stance:
[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1802778](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1802778)

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magicalist
The EFF has much better coverage: [https://www.eff.org/deeplinks/2014/02/bad-
facts-really-bad-l...](https://www.eff.org/deeplinks/2014/02/bad-facts-really-
bad-law-court-orders-google-censor-controversial-video-based)

Note that this is an injunction _ahead_ of the decision of whether her
copyright claim is valid. This is especially bad, even if she does eventually
succeed in her claim, as it reinforces _claims_ of copyright infringement as a
way to restrain speech (especially worrying here because her performance
consists of 5 seconds of film).

~~~
rayiner
To get a preliminary injunction, you have to show (among other things) a
substantial likelihood of success on the merits as well as irreparable harm. I
tend to agree with 'shalmanese above, which is that it would be a peculiar
situation in which this precedent would allow you to suppress without there
having been some bad conduct on the part of the speaker as is the case here.

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bwilliams18
One thing to note–It's standard for everyone on a film set to sign a 'Deal
Memo' which among other things expressly releases all creative
rights(copyright) to any work you do on said project. While I agree with
Google, there isn't a big risk to movie studios etc.

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morgante
I don't understand how she had any claim to this. I'd expect that everyone
working on the film signed an IP agreement releasing all moral rights.

~~~
shalmanese
From the brief:

"Youssef didn’t obtain a written agreement, and Garcia simply doesn’t qualify
as a traditional employee on this record."

~~~
sigzero
I don't agree with that. She was in the movie. Obviously she agreed to that
part. She relinquishes everything at that point written agreement or not.

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jrockway
Now that it's gone, I kind of want to see it.

I have to wonder why more people don't file takedown requests solely to
exploit the Streisand Effect. (Not that I'm implying that's what's being done
here, just that it would be an interesting idea.)

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harshreality
Imagine you hate Islam and you want to portray it in an obnoxious, demeaning,
and depraved manner, with all the production quality of a middle school film
project. You've just envisioned Innocence of Muslims.

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jrockway
Yeah, I read the Wikipedia article. It sounds horrifyingly bad. And in very
poor taste.

~~~
theorique
And protected by the First Amendment.

Unlike some theocratic regimes where the maker of this film would be beheaded,
at least we have some remaining freedom of speech and expression.

The right of free speech is not resolved in motherhood-and-apple-pie cases but
in the extreme fringes of bad taste and offensiveness ( _Human Centipede_ ,
Nazi propaganda, etc)

~~~
eropple
This is a contract law case.

~~~
baldfat
I disagree this is a first amendment case that someone found a way to get the
video taken down.

They then made this a copyright case due to a bad contract.

~~~
btilly
You can disagree, but you are wrong.

A first amendment case, by definition, is a case involving whether the
government has a right to restrict your speech.

By contrast this case is about a person's private lawsuit to have unauthorized
video of herself taken down. No government, no first amendment.

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netcan
There are some very old themes in this story.

Maintaining strong & effective sanctions against apostasy & heresy is a
central component of "organized religions," their historical rise as official
state religions and their positions as power wielding institutions. The
collaboration of state and church to enforce a ban on heresy has been one of
the most dangerous cornerstones of many of the most totalitarianism
institutions of ancient, medieval and modern history.

In my opinion, it is a very bad thing to tolerate.

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zimbatm
Link to the "movie trailer":
[http://www.dailymotion.com/video/xtk8hd_innocence-of-
muslims...](http://www.dailymotion.com/video/xtk8hd_innocence-of-muslims-
movie-muslims-don-t-want-people-to-see_shortfilms)

It's so bad, actors change voice, presumably because post-production had to
make them say things.

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baldfat
Movie: Sad that this was made

COST Judgment: Going to cost everyone Billions. Movie industry needs to be
scared. If 5 seconds with paper work that was not upfront is the deciding
factor of copyright I am betting there are thousands of actors and actresses
who will bring up similar claims.

Copyright is to strong already, as we all agree.

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nl
Interesting. Does this precedent (if it stands) give the EU concept of Moral
Rights legs in the US, or was it just that the producers forgot to get the
actress to waive her rights to the film?

~~~
ubernostrum
None of the above.

In the US, a judge cannot simply say "OK, we have moral rights in copyright
now" \-- only Congress has that power. And the court did not rule that the
actress had "moral rights". Most of the time, when you create or take part in
creating copyrighted work, for someone else, for pay, you do _not_ hold the
copyright to it. The person who paid you to do it gets the copyright, and this
is called "work for hire".

What the court ruled was that there may be a case to be made that this would
not fall under "work for hire", and if so, that there might be a copyright
claim the actress can assert to her work in the film.

The main problem is that it appears to be a ludicrously-massive deviation from
established precedent, and in US law courts at this level really do not get to
do that, either.

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arca_vorago
The real issue surrounding this film is about how it was used as a tool and
scapegoat in the destabilization and coup of Egypt. Lot's of very suspicious
activities surrounding it.

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whatevsbro
Ah, Google. Defending the first amendment, while shitting all over our
privacy! Such heroes!

~~~
xenophanes
If you think they are doing something good in this case, I recommend not
complaining in discussions about this case.

Also, Google is a big complicated thing with many different people and parts.
Don't expect total consistency from anything that large and complex.

~~~
whatevsbro
> If you think they are doing something good in this case, I recommend not
> complaining in discussions about this case.

I don't think they're doing anything good. If they were actually good, they
wouldn't be eagerly shitting all over our privacy and constantly devising new
ways to do so.

This is just a PR/Distraction-stunt.

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beedogs
Good riddance. It's pure garbage, regardless of the legal reasons behind the
takedown.

~~~
InclinedPlane
Being able to say something controversial or offensive is precisely the reason
why freedom of speech is necessary. There's no need to have "freedom" to do
what everyone else finds non-objectionable.

~~~
Crito
To add to your point:

 _" The trouble with fighting for human freedom is that one spends most of
one's time defending scoundrels. For it is against scoundrels that oppressive
laws are first aimed, and oppression must be stopped at the beginning if it is
to be stopped at all."_ \- H.L. Mencken

~~~
pekk
We seem to be implying that this means we have a specific obligation to defend
all scoundrels and all terrible propaganda movies, when in fact that isn't the
case

~~~
InclinedPlane
In that there is an "obligation" to defend our liberties there is an
obligation to defend attacks on scoundrels insofar as such attacks strike at
fundamental freedoms.

Scoundrels are the easiest targets but denying them of freedoms ultimately
denies everyone of those same freedoms.

