Google Warns 'Muslims' Ruling Will Create Hollywood Chaos
10:55 AM PST 2/28/2014 by Eriq Gardner
According to Google, the ruling "opens the door to
an extra in even 'Gone With the Wind' contacting Netflix and demanding that it
purge every copy of the film from its inventory."
Google is really freaking out about Wednesday's ruling
determining that Innocence of Muslims actress Cindy Lee Garcia could assert a
copyright interest in her performance in the film and that as a result, the
controversial anti-Islamic film had to be wiped from YouTube.
The web giant has filed a new emergency motion to stay
the disposition pending a rehearing before a larger panel at the 9th Circuit
Court of Appeals. In doing so, Google
has some bold First Amendment warnings about the implications for allowing an
actress with five seconds of screen time to enjoin its distribution of
Innocence of Muslims:
"The panel has adopted a novel interpretation of
copyright law that will invite uncertainty and chaos for the entertainment
industry, documentary filmmakers, amateur content creators, and for online
hosting services like YouTube, allowing bit players in movies, videos, and
other media to control how and when creative works are publicly
displayed."
How so? Google continues:
"Under the majority’s analysis -- absent contractual
shifting -- movie extras could register copyrights in their reaction shots,
facial expressions, and mimed chatter. Background singers on a record could
register their 'oohs' and 'ahhs.' The list goes on."
Could the ruling be the end of YouTube? Google says:
"Most of the millions of amateur filmmakers who
upload their videos and other creative works to YouTube presumably do not have
written agreements with those who appear in their videos. That means anyone who
appears in those videos -- even for five seconds -- will now have independent
authority to contact YouTube and demand their removal."
And what about Hollywood? More from Google:
"To be sure, many professional filmmakers try to
obtain releases from participants. But how long have they done so? And how long
do they keep them? And do they obtain them from everyone with even the smallest
role? The majority's approach opens the door to an extra in even Gone With the
Wind contacting Netflix and demanding that it purge every copy of the film from
its inventory."
Google says the copyright system isn't meant to deal with
such fallout and points to something we wrote on the day the ruling was
released.
"Nor would the implied-license doctrine solve the
problem. YouTube, after all, could not meaningfully adjudicate a takedown
dispute if a bit player asserted that he had been misled about what his role in
the film would be. Implied contract claims are intensely factual and subject to
defenses -- such as the fraud-in-the-inducement defense the majority identified
-- that third-parties like YouTube are ill-equipped to adjudicate. Its only
choice would be to roll the dice with an infringement suit or remove the video.
As one commentator has already recognized, the majority's rule will ensure that
online service providers like Google and YouTube 'will have tough days ahead of
them in determining how to respond to copyright takedown notices from
individuals who, before today, might not have been presumed to hold any
interest in copyrighted material.'"
E-mail: Eriq.Gardner@THR.com
Twitter: @eriqgardner
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