It’s been a few days since Hon. Alex Kozinski, Chief Judge of the Ninth Circuit (Federal) Court of Appeals, issued his decision in Garcia v. Google et al, relating to whether or not an actress whose image and actions were used in an anti-Islam film polemic could insist that YouTube (owned by Google) take down the film. Hon. Kozinski decided that she could, finding, in an unusual procedural position (review of a denial of a motion for a preliminary injunction) that she likely has a cognizable copyright interest in her performance. The significance of her having a colorable copyright interest is that Google/YouTube is arguably liable for copyright infringement if it ignores her request to remove the infringing material. This exposure arises under the Digital Millenium Copyright Act, which provides a “safe-harbor” for companies hosting infringing materials, provided that they acted to remove the materials after notice. This is generally referred to as the DMCA takedown procedure.
So, to summarize, Google did not remove the video after her take-down requests (8 of them, in fact) because Google did not believe that she, as an actor in the film, had a protectible copyright interest. Hon. Kozinski found she did have such an interest. Thus, then, ergo, the film should be removed from Google’s service.
Many estimable scholars have written in the succeeding days about how wrong-headed this decision is, strictly on copyright grounds. I tend to agree. True, there is a mystifying (to me, at least) discussion about express and implied licenses which looks to be little more than a mechanism for allowing the Court to make the case that Ms. Garcia was taken advantage of, lied to, and is otherwise not at fault. I’ll leave that to scholars.
Under the facts set out by both the majority and minority decisions, Ms. Garcia has suffered a wrong. She was paid $500 for a part in a film that was never released. Instead her footage was repurposed into the objectionable work, and words she never spoke were overdubbed onto her performance. Because the film is ill-liked by certain interests, her participation resulted in death threats and other attacks that none of us sign up for.
What, then, was the wrong?
That’s the slippery problem here. Google harbored no demonstrable ill-will toward her: it was simply the platform by which the film was displayed. Ms. Garcia was duped by the people who filmed her and they carried out the ruse. She sued them. According to the 9th Circuit Opinion, they never answered. They have gone to ground. In common parlance, they are judgment proof, or at least aren’t willing to answer to Ms. Garcia in court. see footnote 1: ” Although Garcia’s suit also named the film’s producers, only Google,which owns YouTube, answered the complaint.”
Google answered. Google is unlikely to be legally responsible for bad things that happened to Ms. Garcia, because of section 230 of the Communications Decency Act which says that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. § 230). (emphasis supplied).
In other words, and to paint the strokes very broadly, Google can’t be responsible to Ms. Garcia for simply hosting the film on YouTube under theories of tort which she might have available for the doubtless personal anguish she has suffered. For example, she might have claims of misappropriation of her likeness, false light, libel (a stretch) or some other theory that would get at how she has suffered at the hands of the producers and filmmakers who put her in this position.
But not Google, thanks to section 230.
As the Electronic Frontier Foundation states:
In other words, online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others say and do. The protected intermediaries include not only regular Internet Service Providers (ISPs), but also a range of “interactive computer service providers,” including basically any online service that publishes third-party content. Though there are important exceptions for certain criminal and intellectual property-based claims, CDA 230 creates a broad protection that has allowed innovation and free speech online to flourish.
Can’t argue with that either… Section 230 has provided a means for all manner of hosted material, including some pretty heinous stuff (no, I refuse to link it) to be distributed without the hosts (YouTube, Twitter, you name it) having legal exposure.
Except. Now look back at the EFF commentary above: “there are important exceptions for certain criminal and intellectual property-based claims”
Boom. Enter Hon. Kozinski, and Garcia’s counsel. It was necessary to carve out an identifiable copyright interest that Garcia could assert, so that Google would not enjoy the protections of Section 230.
Most would say that section 230 allowed the Modern Internet to grow, expand, and flourish. Back in the Internet Stone Age, there were cases litigated against Prodigy (look it up), Compuserve, and other hosts, and their flexibility in offering services was likely hindered by uncertainty of when and under what circumstances they could get tagged for allowing someone else to use their service to post, let’s say, libelous material. The story (allegedly) goes that the guy on whom Jonah Hill’s character was based in “Wolf of Wall Street” was incensed at a posting on Prodigy and sued Prodigy for libel in a third party post. Stratton Oakmont, Inc. et al. v. Prodigy Services Company, et al. 1995 N.Y. Misc. Lexis 229, (N.Y. Sup. Ct. Nassau Co., 1995) motion for renewal denied 1995 WL 805178 (Dec. 11, 1995).That was the environment before Section 230.
So, between section 230, and the DMCA copyright safe harbor, it seems there was an uneasy bargain struck (see the title of this post) to say, essentially, that people enabling internet services would not be responsible for “soft” injuries to persona, bad feelings, hurt feelings, harm to reputation, the kind of things that tort law covers. On the other hand, economic injuries, like copyright infringement, were fair game–but only if the DMCA safe harbor rules were ignored.
But, Hon. Kozinski has thrown a wrench into the works. Ms. Garcia’s harm is real, but is it economic? It is now, so long as Garcia stands. For years, the on-line world operated by the bargain struck above, but now a personal interest not to be duped or mis-presented has been characterized as an economic/copyright interest (“Garcia may assert a copyright interest only in the portion of “Innocence of Muslims” that represents her individual creativity“).
That’s what the fuss is about.