Google forced to remove Innocence of Muslims

DMCA Solutions Victory
FOR IMMEDIATE RELEASE – February 26, 2014

LOS ANGELES – On February 26, 2014, the United States Court of Appeals for the Ninth Circuit handed down a stunning, David versus Goliath, victory in the long-running struggle of California actress Cindy Lee Garcia to force Google and YouTube to remove the hate-filled propaganda film The Innocence
of Muslims from the YouTube platform. The basis of Ms. Garcia’s lawsuit is that Google and YouTube, along with “director” Nakoula Basseley Nakoula a/k/a “Sam Bacile” and many other aliases, violated the copyright that she holds in her theatrical performance in the film. The opinion was authored by the Honorable Alex Kozinski, Chief Judge of the Ninth Circuit, and is attached to this release.

Mr. Nakoula obtained Ms. Garcia’s agreement to appear in the film through fraud: to wit, he falsely represented to her that she would be appearing in an apolitical historical adventure film titled Desert Warriors. After Ms. Garcia delivered her performance, Mr. Nakoula and/or his associates dubbed over her footage to give the appearance that Ms. Garcia had made incendiary accusations against Mohammed, the founder of the Islamic religion—when in fact, she had not. After the filmmakers hosted the film on YouTube, which is owned by Google, Ms. Garcia became the object of a fatwa, and indeed, continued to receive death threats. Shockingly, Google and YouTube said that Ms. Garcia was to blame for the threats to her life because her lawsuit to have the film removed from YouTube sparked publicity—an argument that the Ninth Circuit deemed “preposterous.”

“We are delighted that the Ninth Circuit has recognized the significant threat to Cindy Lee Garcia’s life and safety caused by Google and YouTube’s refusal to remove the propaganda film Innocence of Muslims from the YouTube platform after Ms. Garcia made eight separate requests that they do so,” said lead attorney M. Cris Armenta of The Armenta Law Firm, who argued the case before the Ninth Circuit Court of Appeals. “Ordering YouTube and Google to take down the film was the right thing to do. The propaganda film differs so radically from anything that Ms. Garcia could have imagined when the director told her that she was being cast in the innocent adventure film Desert Warrior that had she known the true nature of the project, she never would have agreed to participate. We look forward to the trial court’s entry of an appropriate order making the Ninth Circuit’s takedown order permanent.”

In ruling for Ms. Garcia, the Ninth Circuit held that a previous lower court order, which had denied Ms. Garcia’s request that Google and YouTube be ordered to remove the film from YouTube, was an “abuse of discretion,” and moreover, that Ms. Garcia’s legal claims against Google, YouTube, and film’s director are “likely to succeed.”

“This is wonderful news,” said Cindy Lee Garcia, the actress at the center of the legal storm. “Ever since I learned that my performance was dubbed over with hateful words that I would never even think—much less say—I have fought to have any part that I played removed from Google and YouTube’s global platform and to assure every part of the Muslim community that as a fellow believer in one God, there is no hate in my heart for either the religion of Islam or the people who follow it. I am so grateful that the Ninth Circuit recognized both my sincerity and the real danger that I have been in since YouTube posted that hateful film and refused to take it down, even when I told them that I had never said the words that the filmmakers made it look like I said. I owe a real debt of gratitude to the judges who took my situation seriously, even though I am just a novice actress who took on one of the most powerful companies in the world. It was devastating to me that my work was in any way linked or associated to the deaths of our ambassador and the SEALS. I am a strong believer and supporter of the
First Amendment and have the right not to be associated with this hateful speech against my will.”

In legal terms, the decision was a complete victory for Ms. Garcia. As set forth in the attached decision, the Ninth Circuit reversed the district court’s denial of a preliminary injunction ordering YouTube to remove the video, concluding that Ms. Garcia “established a likelihood of success” in her lawsuit against Google, YouTube, and the filmmakers. In doing so, the court decided that Ms. Garcia likely had an independent [copyright] interest in [her] performance and that the filmmaker did not own a copyright interest in that performance. Additionally, the court recognized that Ms. Garcia would likely suffer irreparable harm, as a result of the threats that have been levied against her, if the film was not taken down. The court also ruled that Ms. Garcia does have a copyright interest in her performance, that Ms. Garcia was not an “employee” of the filmmakers who would have delivered her performance as a non-copyrightable “work for hire,” that the filmmakers clearly exceeded the scope of any “implied” license that Ms. Garcia may have granted in her performance because of the radical difference between Desert Warrior and The Innocence of Muslims and also because Ms. Garcia’s performance was procured by the filmmakers’ fraud, and that the damage to Ms. Garcia’s reputation and threats against her life constituted “irreparable harm” that is “real and immediate.” Finally, the court ruled that “the First
Amendment doesn’t protect copyright infringement” and that public interest considerations “tip[] in [Ms.] Garcia’s direction.”

“Ms. Garcia’s insistence that she does not condone the film and its hateful messages has previously fallen on deaf ears,” commented counsel Credence Sol, a California litigator based in France. “The Ninth Circuit’s opinion makes it clear that Google and YouTube’s many attempts to justify their continued exhibition of The Innocence of Muslims, including the fallacious argument that the First Amendment permits them to violate Ms. Garcia’s copyright interest in her artistic performance despite YouTube’s habitual practice of taking down other videos that violate the copyright laws and well- established authority for the proposition that the First Amendment does not trump copyright, are rightfully rejected.”

Ms. Garcia’s legal team consisted of M. Cris Armenta of Los Angeles and Credence Sol of France, who are both admitted to the California bar, and were assisted by attorneys Jason Armstrong of Bozeman, Montana and David Hardy of Massachusetts. “We are reviewing the opinion in light of Google and YouTube’s request for a hearing en banc before the Ninth Circuit and for a likely petition for certiorari to the United States Supreme Court, and prepared to defend Ms. Garcia’s rights to the end,” commented Mr. Armstrong.

Prior to filing the lawsuit, Ms. Garcia, with the help of David Hardy and his company, DMCA Solutions, had issued at least eight DMCA (Digital Millenium Copyright Act) “takedown notice” to YouTube. The notices informed YouTube that the film violated Ms. Garcia’s copyright in her performance, and provided YouTube with a copy of her application for federal copyright registration, in which Ms. Garcia affirmed under penalty of perjury that she had not transferred the copyright. Under the DMCA, YouTube was required to take down the posting, and allow the individual users who had posted the film to have an opportunity to show that they had the right to exhibit the film. Had it done so, the DMCA would have given YouTube “safe harbor” against Ms. Garcia’s copyright claims. YouTube, however, refused to take down the posting, which is why it and its parent company Google are named in the lawsuit along with the filmmakers.

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Ms. Garcia is represented by attorneys M. Cris Armenta and Credence Sol. Both are California litigators in solo practice, and both were previously affiliated with Skadden Arps Slate Meagher & Flom LLP. Both are former federal law clerks; Ms. Armenta in the Southern District of California, and Ms. Sol in the Ninth Circuit Court of Appeals. Ms. Armenta’s law practice focuses on civil litigation, entertainment, real estate and the recovery of kidnapped children. Ms. Sol’s practice focuses on civil litigation; she has published several articles on Internet law and international freedom of speech issues. Other attorneys providing substantial assistance on the legal team were Jason Armstrong of Bozeman, Montana, and David Hardy of Massachusetts.

M. Cris Armenta –

Phone: (310) 488-2080

Credence Sol –

Phone: 06 74 90 22 08, COUNTRY CODE +33.

Jason Armstrong –

Phone: (406) 587-2084

Dave Hardy –

Phone: (202) 350-0200