Innocence or arrogance? US court oversteps on internet regulation

The US Court of Appeals for the Ninth Circuit has overstepped its bounds. Ken Lund/Flickr, CC BY-SA

The legal drama that has followed the online publication of the “Innocence of Muslims” film may be worthy of being used as the plot for a movie in its own right. And, given a recent judgement by Chief Judge Kozinski in the US Ninth Circuit, it would no doubt be best as a horror movie.

The background to the dispute is rather complex, but put simply, Cindy Lee Garcia was cast in a minor role in a film with the working title “Desert Warrior”. For three and a half days of filming she received US$500. However, that film never materialised. Instead, Garcia’s scene was used in another film – a highly controversial film titled “Innocence of Muslims”.

Garcia first saw this latter film after it was uploaded online. At that time, she discovered her brief performance had been partially dubbed over so that she appeared to be making a statement offensive to persons of the Muslim faith.

Garcia sought to have the movie taken down by arguing to have a copyrightable interest in her brief performance in the movie. Needless to say, such a claim has a slim prospect of success in most parts of the world, but Chief Judge Kozinski concluded that Garcia did have such a right.

An unconventional approach

Chief Judge Kozinski took a contentious approach to the copyright issues involved – ordinarily an actor or actress would not retain a copyright interest in the film they participate in.

But of equal concern, the Court ordered Google Inc to:

take down all copies of ‘Innocence of Muslims’ from YouTube.com and from any other platforms under Google’s control, and take all reasonable steps to prevent further uploads of ‘Innocence of Muslims’ to those platforms.

Given Google’s virtually global presence, with various country-specific platforms, the problem is obvious. US copyright law applies in the US, not globally. This fact can scarcely have escaped the Court. Yet, it was not even touched upon by the 9th Circuit on this occasion. Indeed, Chief Judge Kozinski did not even seek to legitimise the approach by putting the court order in terms suggesting that the global take down was necessary to ensure the film was inaccessible in the US.

If we let domestic courts make orders regulating what may and may not be published globally, we will quickly find ourselves in a situation where the only content (legally) available online is such content that is acceptable globally. But how useful would such an internet be? And where would that leave us when it comes to freedom of speech?

Australian courts less presumptuous

Luckily, it is rare for courts to take such a parochial approach as the 9th Circuit did in this dispute. More commonly, courts have recognised that making court orders with global reach is problematic and typically excessive. An extract from a judgement by the New South Wales Supreme Court is illustrative.

An injunction to restrain defamation in NSW is designed to ensure compliance with the laws of NSW, and to protect the rights of plaintiffs, as those rights are defined by the law of NSW. Such an injunction is not designed to superimpose the law of NSW relating to defamation on every other state, territory and country of the world. Yet that would be the effect of an order restraining publication on the Internet.

It is not to be assumed that the law of defamation in other countries is coextensive with that of NSW, and indeed, one knows that it is not. It may very well be that according to the law of the Bahamas, Tazhakistan [sic], or Mongolia, the defendant has an unfettered right to publish the material. To make an order interfering with such a right would exceed the proper limits of the use of the injunctive power of this court.

Ultimately, a global removal of content that is only unlawful in some countries but not others would arguably infringe the rights of people in those latter countries to access that content. Further, global blocking in such a situation may be seen as a violation of the creator’s right to communicate that content in the countries where doing so is lawful.

It is important that we do not overlook these rights just because there may be a duty not to communicate that content in some countries.