Wednesday, February 26, 2014

9th Circuit Orders Youtube to Take Down Innocence of Muslims Film

In a 2-1 decision, the 9th Circuit Court of Appeals ordered the removal of a controversial video from Youtube.  Innocence of Muslims was an anti-Islamic video posted on Youtube in 2012.  The video was even initially cited as a cause of the Benghazi tragedy.  An actress in the film received repeated death threats.  Cindy Lee Garcia filed suit seeking removal of the video via a temporary restraining order.  The trial court denied that request ruling that such an order would be a prior restraint of speech and violate the tenants of the First Amendment.  Ms. Garcia argued that her performance was secured by misrepresentation and that she owned the copyright to her performance.  She argued that the video exceeded the implied license to use her image and performance.  Judge Alex Kozinski found that this breach of the license agreement and the danger of irreparable harm justified the issuance of the temporary restraining order requiring Google to remove the video from Youtube. 

This is an intriguing case for many reasons.  Among them, although the video and its effect are distasteful, many free speech and free for all Internet enthusiasts may be troubled by the ruling.  It may signal a realization in the 9th circuit that expression on the Internet has gone too far and too free and needs to be checked.  One tool that those who are damaged by Internet content can use to remove such content is a temporary restraining order.  Previously, it was just about unthinkable for a court to issue a temporary restraining order in relation to speech torts.  We may now see the doors open allowing individuals and small businesses fight back against negative Internet content.  Of course, Internet companies such as Google, Yelp and Twitter will line up to fight against such a shift in jurisprudence. 

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