Appeals court decision undermines free speech, misinterprets copyright law

Last week, the American Library Association (ALA) joined an amicus brief calling for reconsideration of a 9th circuit court decision in Garcia v. Google, case where actress Cindy Sue Garcia sued Google for not removing a YouTube video in which she appears. Garcia appears for five seconds in “Innocence of Muslims,” the radical anti-Islamic video that fueled the attack on the American embassy in Benghazi. The video was uploaded on YouTube, exposing Garcia to threats and hate mail. Garcia did not know that her five second performance would be used in a controversial video.

Garcia turned to the copyright law for redress, arguing that her five second performance was protected by copyright, and therefore, as a rights holder she could ask that the video be removed from YouTube. While we empathize with Garcia’s situation, the copyright law does not protect performances in film—instead these performances are works-for-hire. This ruling, if taken to its extreme, would hold that anyone who worked on a film—from the editor to the gaffer—could claim rights, creating a copyright permissions nightmare.

On appeal, the judge agreed that the copyright argument was weak, but nonetheless ruled for Garcia. The video currently is not available for public review. This decision needs to be reheard en banc—the copyright ruling is mistaken, and perhaps more importantly, the copyright law cannot be used to restrain speech. While the facts of this case are not at all appealing, we agree that rules of law need to be upheld. Fundamental values of librarianship—including intellectual freedom, fair use, and preservation of the cultural record—are in serious conflict with the existing court ruling.

Read more on the case.

Carrie Russell is the Director of the Program on Public Access to Information in the Office for Information Technology Policy (OITP). Her portfolio includes copyright, international copyright, accessibility, e-books and other public policy issues. She has a MLIS from the University of Wisconsin-Milwaukee and a MA in media arts from the University of Arizona. She can be reached via e-mail at crussell@alawash.org.

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