Innocence of Muslims Can Go Back on YouTube. Good.

A screenshot from Innocence of Muslims.

Nakoula Basseley Nakoula

On Monday the 9th Circuit Court of Appeals reversed an earlier ruling that had forced YouTube to take down Innocence of Muslims, an inflammatory anti-Islam film that may have helped spark the Benghazi attack. Because this is America, the decision did not deal directly with blasphemy—a constitutionally protected form of expression—but with copyright and intellectual property. Yet lurking just beneath the court’s opinion lay a vigorous defense of free speech, individual liberty, and the right to disseminate even hateful, noxious ideas.

The strange case arose after Cindy Lee Garcia accepted $500 to appear briefly in what she believed was an action-adventure thriller set in ancient Arabia. Garcia’s only line was “Is George crazy? Our daughter is but a child?” In postproduction, however, producers overdubbed her line with the words, “Is your Mohammed a child molester?”

In the final cut of the film, Garcia appeared on screen for five seconds. But after the film premiered and spurred riots in the Middle East—and a fatwa against its actors in Egypt—Garcia sued YouTube and its parent company, Google, demanding they take down the film. Initially, Garcia asserted that the film was hate speech and violated her right to privacy. Eventually she settled on the copyright claim, insisting that she held a copyright over her five-second appearance, which gave her the right to force Web hosts to remove the film.

As the 9th Circuit acknowledged on Monday, Garcia’s copyright claim was, in short, ridiculous. The “author” of a film is usually its director, perhaps jointly with its producer and screenwriter. Individual actors can’t “author” a film for copyright purposes; otherwise, every actor would hold a copyright over her individual scenes, creating what Google called a “Swiss cheese of copyrights.”

It gets worse for Garcia. The Copyright Office registers movies as a single “work” and refuses to splinter every film in smaller copyrightable bits. Pragmatism dictates such a rule—otherwise, the court says, each of the estimated 20,000 extras in Lord of the Rings might assert copyright ownership of their individual scenes. And oddly, Garcia’s copyright claim is even weaker than a Lord of the Rings extra’s: While Frightened Hobbit No. 2 might have actually spoken his lines, Garcia’s one line was overdubbed, meaning she didn’t even utter a single word in the film. By manipulating her role, the movie’s director became the indisputable author of even Garcia’s five-second cameo.

All of this stuff is good law, well applied. But luckily the court recognized that there’s more going on here than just a dry intellectual property dispute. At the outset the majority wrote that the appeal “teaches a simple lesson—a weak copyright claim cannot justify censorship in the guise of authorship.” Later on it reprimanded a panel of judges who had previously ordered YouTube and Google to remove the video:

The takedown order was unwarranted and incorrect as a matter of law, as we have explained above. It also gave short shrift to the First Amendment values at stake. The mandatory injunction censored and suppressed a politically significant film—based upon a dubious and unprecedented theory of copyright. In so doing, the panel deprived the public of the ability to view firsthand, and judge for themselves, a film at the center of an international uproar.

In a separate opinion the 9th Circuit’s liberal lion Judge Stephen Reinhardt benchslapped the panel once again, sternly noting, “This is a case in which our court not only tolerated the infringement of fundamental First Amendment rights but was the architect of that infringement”:

[W]e issued an order that prohibited the public from seeing a highly controversial film that pertained to an ongoing global news story of immense public interest. … By suppressing protected speech in response to such a threat, we imposed a prior restraint on speech in violation of the First Amendment and undermined the free exchange of ideas that is central to our democracy and that separates us from those who condone violence in response to offensive speech

Intellectual property experts generally agreed that the copyright ruling was correct. But you don’t have to be an IP professor to know that the Constitution does not permit courts to censor expression through the vehicle of a thinly veiled copyright claim. Innocence of Muslims may be blasphemous, hateful, and inane, but it’s also a textbook example of highly political speech on a matter of fierce public debate. Its controversy demonstrates precisely why it needs constitutional protection. Free speech is a very nice idea for a democracy. But it means nothing when judges can toss it out the window under the pretext of a laughable copyright suit.