October 18, 2012 9:04am PT by Eriq Gardner
'Innocence of Muslims' Actress Attacks Google in New Attempt to Pull Down Trailer
Earlier this week, Chris Armenta, the attorney for Innocence of Muslims actress Cindy Lee Garcia, phoned up the defense attorney for Nakoula Basseley Nakoula, the jailed producer behind the anti-Islam film that has stoked violent protests across the Muslim world.
Garcia is suing Nakoula for duping her into appearing in a controversial movie that has led to a fatwa on her head. The purpose of the call was to find out whether Nakoula had accepted a settlement offer. Armenta was told by Nakoula's attorney that she was pursuing the wrong person.
In new legal papers filed in the case, Armenta says she followed up by asking who was the right person.
"The one that owns the rights to the film," purportedly responded Nakoula's lawyer, who wouldn't identify that person.
Armenta's next move was to e-mail Timothy Alger, a former deputy general counsel at Google, who now represents the company from the outside as a partner at Perkins Coie.
"I have just been informed by Nakoula's attorney that Nakoula...DOES NOT OWN the rights to the film and will not claim copyright ownership on the rights to the film," Armenta wrote. "We believe it is YouTube's burden to identify the correct copyright holder, in light of Garcia's allegations that she owns the rights to her dramatic performance."
This is just one example of correspondence happening behind the scenes as Armenta attempts to punish Google for a comment from the company's executive chairman Eric Schmidt where he says in reference to Innocence of Muslims, "We believe the answer to bad speech is more speech...It'll stay up."
Garcia recently re-filed her lawsuit in federal court after failing to get a California state judge to order YouTube to remove the video. Late Wednesday, she filed a new motion for an injunction. (Read the full motion here.) The latest motion is rather unusual. Besides the typical legal reasoning, Garcia's attorney also submits hundreds of pages of documents and news articles about Viacom's copyright battle with YouTube, and attempts to put the web giant on trial for the way it responds to takedown requests.
In suing YouTube and Nakoula, Garcia is making a bold claim that her dramatic performance is eligible for copyright protection. She's got hurdles to overcome since courts have been skeptical about conferring authorship to specific contributors working on movies, and many attorneys including Marc Randazza have been dubious of her claims.
Nevertheless, the lawsuit raises a hot-button question about YouTube's role in playing referee when someone purports to own a copyright and informs the service of an infringing work. In the interest of attaining safe harbor under the Digital Millennium Copyright Act, YouTube has long attempted to be as neutral as possible in weighing the validity of copyright claims. For instance, here's a little-known fact: Four years ago, after Viacom sent YouTube a DMCA notice over a video uploaded by the Barack Obama campaign, the soon-to-be President of the United States hit his "third strike" and has his account terminated. (Special accommodations were later made for Obama.)
In this instance, YouTube got a takedown notice on Innocence of Muslims from Garcia, but decided that it wasn't worthy.
Armenta writes in the latest motion for an injunction, "On October 5, 2012, Google and YouTube's lawyers finally revealed their legal reasoning -- according to them, Plaintiff had a meeting of the minds with Defendant Nakoula, at the time she agreed to act in Desert Warrior that the finished project would be a 'joint work.'"
It is, of course, disputed that Desert Warrior/Innocence of Muslims is indeed a "joint work." The plaintiff says she was tricked to appear in the film and never signed any waiver giving up her rights. In the new court papers, Garcia's lawyers also point to two 9th Circuit decisions (here and here) as well as a statement made by the U.S. Patent & Trademark Office upon the July, 2012 signing of an international treaty to support the idea that actors own the rights to their performances unless those rights are assigned, unless they are employees, or unless they execute a contract indicating that their work is a work-for-hire.
That's a topic of debate.
But the other main question in this dispute is Google/YouTube's responsibility when receiving a takedown notice. During the appeal in the Viacom case, Google's lawyers argued forcefully for a strict knowledge standard in determining an ISP's copyright liability. Google wanted copyright holders like Viacom to bear the burden of sending takedown notices because they were in the best position to determine what is infringing and what is not. "There's no central depository of copyrights," said Google's lawyer during the appellate hearing.
OK, but what happens after the takedown notices comes? Remove expeditiously, right? Not so fast.
No surprise that Garcia's injunction request is larded with countless documents and declarations from Viacom v. YouTube in an effort to show YouTube has defined itself as being responsive to direction from copyright holders, although it remains to be seen whether a California federal judge considers such evidence. (Earlier in the week, a judge denied a request for an injunction motion longer than 35 pages.)
Garcia is pushing, potentially opening up a sensitive issue for Google.
In a declaration given by David Hardy, president of DMCA Solutions, YouTube's typical notice-and-counter-notice process is described. Hardy then shares his conversations with YouTube over the Innocence of Muslims video and characterizes YouTube's responses as purposeful delay tactics and feigning ignorance on copyright law. (Read Hardy's declaration here.)
In one note to Google, Hardy goes so far as to accuse Google of attempting to profit off of Innocence of Muslims.
"As you know, YouTube ordinarily takes down allegedly infringing content within minutes using its automated system or within 24 hours in other cases," he wrote to YouTube's copyright takedown agent on October 2. "The fact that YouTube has not followed its internal protocols in this particular situation speaks to YouTube and Google's bad faith, and its clear desire to attempt to generate more views and hits to the infringing content."
The next day, YouTube gave a "final response" that said a decision had been made that Garcia doesn't have an enforceable copyright interest and that it wouldn't remove the video.
Google has not yet responded for a request for comment.
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