Benghazigate and Internet freedom

Republicans are continuing to bleed "Benghazigate" dry, shamelessly exploiting the four men who died at the consulate in the Libyan city on Sept. 11, 2012 for political ends, even as they accuse the White House of having betrayed them to their deaths. The House of Representatuves has now authorized creation of a select committee to investigate the already exhaustively investigated affair, seizing upon the release of supposedly damning e-mails from a White House aide. As the LA Times notes in an editorial: "The administration should have released the Sept. 14, 2012, email from deputy national security advisor Ben Rhodes long ago. That said, it's anything but a smoking gun. Referring to protests over the video throughout the Muslim world, Rhodes suggested that [then-US ambassador the UN Susan] Rice stress that 'these protests were rooted in an Internet video and not a broader failure of policy.'" The video in question is of course the notorious Innocence of Muslims pseudo-film, produced as a provocation by Islamophobes. That the White House sought to "spin" the consulate attack as a protest against the video that got out of hand, rather than a pre-planned act of "terrorism" that the administration failed to stop, is plausible. (Although the distinction also points to the elastic nature of the word "terrorism.") Now, all too predictably, right-wing commentators like American Thinker are arguing that the video had nothing to do with the attack, while lefty outlets like Mother Jones are insisting that yes it did after all. (The question of whether the attackers were linked to al-Qaeda has been similarly politicized.)

A side-story to all this that has been winning all too few headlines is the utterly Orwellian reality that the video at the center of the affair has been purged from the Internet. Netflix last month filed papers asking the US Ninth Circuit appeals court in San Francisco to reconsider its February ruling mandating the purge, which came in the case Garcia v. Google. Netflix is being backed up by the ACLU, Center for Democracy and Technology, Electronic Frontier Foundation and other civil liberties groups. (Hollywood Reporter, The Hill, April 15)

Here's what the EFF had to say after the Ninth Circuit ruling on Feb. 26:

Based on a copyright claim that is dubious at best, the Ninth Circuit Court of Appeals has ordered Google to take offline a video that is the center of public controversy. We can still talk about it, but we can't see what we are talking about. We're hard-pressed to think of a better example of copyright maximalism trumping free speech.

For those who haven't been following this, the case was brought by an actress, Cindy Lee Garcia, who was tricked into performing in a short anti-Islamic film (she was told the film was about something very different) and, as a result, found herself subject to death threats… Garcia then filed a lawsuit against Google and several others, claiming the video infringed her copyright in her performance (approximately 5 seconds of a 13 minute video). Then she asked the court to require Google to take the video down. The district court wisely refused, noting that Garcia's copyright interest was unclear at best. Garcia appealed, and today the Ninth Circuit agreed with her, and ordered Google to take down all copies of the video and take reasonable steps to prevent further uploads.

How is this decision wrong? First, the ruling blows past the First Amendment concerns with the time-worn observation that "the First Amendment does not protect copyright infringement." Of course it doesn't, but neither are copyright cases immune from the same balancing test that applies to any injunction. And the standards for this kind of injunction—a classic prior restraint—are particularly high. Indeed, as the Supreme Court has observed repeatedly, injunctions that shut down speech are particularly disfavored. Court after court has held that they should not be issued where, as here, the case is "doubtful"…

Second, the merits of this case are indeed doubtful. Very doubtful. Garcia is claiming a copyright interest in her brief performance, a novel theory and one that doesn't work well here. After all, Garcia herself admits she had no creative control over the movie, but simply performed the lines given to her. There may be a context where an actor could assert some species of authorship, but this doesn't seem to be one of them. Movie makers of all kinds should be worried indeed.

And not just "movie makers" (which the "producers" of the sick little video were not), but anyone concerned with an informed and vigilant citizenry. Cindy Lee Garcia was indeed exploited, and we supported her suit seeking damages from the evil "producers" of the "film." But getting the "film" (really just an amateurish online video, hardly worthy of the word "film") purged from the Internet—when it is at the center of a major news story—is obviously way, way out of wack. If the Ninth Circuit doesn't reverse its own ruling, we sure hope the Supreme Court will.