Today a federal appeals court in California rejected an effort to use copyright to suppress the distribution of a controversial film online, echoing sentiments I previously expressed in two posts on what I called “IP immigration” [1] [2].  Others have discussed the case at length today [1] [2] [3] [4].  In short, the Ninth Circuit court of appeals rejected a copyright infringement claim by the plaintiff Cindy Garcia, who had been deceived into appearing in a short film titled “Innocence of Muslims,” which made insulting and inflammatory statements about Islam.  When the film was posted to YouTube and translated into Arabic, it resulted in threats to the plaintiff Garcia.

The court’s opinion today recognized that the plaintiff could not and did not have a copyright in her five-second, otherwise-unfixed performance.  As the court put it, the activities surrounding Garcia’s unwitting participation in the film may leave her “with a legitimate and serious beef, though not one that can be vindicated under the rubric of copyright.”  (A separate opinion released today observed that compelling YouTube to take down the video based on threats was a prior restraint of speech prohibited by the First Amendment.)

As I previously argued, disproportionately stronger remedies in one area of law encourage plaintiffs to “migrate” towards claiming that form of injury.  The strength of copyright remedies, for example, attracts plaintiffs whose injuries have little to do with intellectual property.  The availability of injunctive relief compelled the Garcia to pursue copyright remedies, even though her goal was not to monetize her performance in the film.  Similarly, statutory damages and Internet takedown notices are also attractive to plaintiffs who would “disappear” speech for reasons that have little to do with copyright’s goal of incentivizing authorship.  Here, the plaintiff Garcia sought to repackage claims more appropriately framed as fraud or breach of contract into the shape of a copyright injury, so as to invoke remedies that would not be available to a party injured in a contract breach.

Well over a year after initially ruling in favor of Garcia, the Ninth Circuit has finally refused this immigration attempt, saying “[t]he appeal teaches a simple lesson—a weak copyright claim cannot justify censorship in the guise of authorship.”  The fact that other courts have disagreed and that it took the Ninth Circuit roughly 15 months to reach this point suggests that the lesson isn’t as simple as it would appear.

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