Cindy Garcia Still Attacking YouTube Over Innocence Of Muslims Film
from the the-striesanding-continues dept
Cindy Garcia apparently doesn't know when to stop. Perhaps more entertainingly, her legal team apparently was lifted out of some kind of law-driven sitcom. If you'll recall, we last heard from Garcia when she decided that she owned the dramatic performance (oh lord) she provided for the controversial film “Innocence Of Muslims.” Armed with this unilateral declaration which deftly ignores precedent, such as Aalmuhammed v. Lee, she then attempted to get the film taken down from YouTube, ostensibly to win some kind of cat-is-already-out-of-the-bag-move championship that I'm not aware exists. All the while, her previously mentioned legal team offered up evidence that they fail to have a basic understanding of the first amendment by saying, “the First Amendment does protect American’s [sic] rights to freedom to express, and also the right to be free from expression.”
“This guy totally gets us.”
Well, Garcia and her team are back for more, and now they appear to think that YouTube is responsible for identifying the copyright holder of the film in question. The story reportedly goes something like this. Garcia phones up the attorney for Nakoula Basseley Nakoula (or whatever his name is this week) about a settlement offer and said attorney tells Garcia that she needs to contact the holder of the copyright on the film, which is not Nakoula (I have no idea if this is true). Then her lawyers emailed Timothy Alger, an outside consultant for Google.
“I have just been informed by Nakoula's attorney that Nakoula…DOES NOT OWN the rights to the film and will not claim copyright ownership on the rights to the film,” Armenta wrote. “We believe it is YouTube's burden to identify the correct copyright holder, in light of Garcia's allegations that she owns the rights to her dramatic performance.”
I can't imagine why YouTube should have the burden of copyright ownership discovery. How would they even go about doing that? In any case, Garcia's lawyers are citing the Viacom lawsuit against YouTube to put their handling of DMCA takedown requests in the spotlight. But there's a problem with such a citation, in that Google's position during the trial went in exactly the opposite direction on the question of copyright ownership being determined.
During the appeal in the Viacom case, Google's lawyers argued forcefully for a strict knowledge standard in determining an ISP's copyright liability. Google wanted copyright holders like Viacom to bear the burden of sending takedown notices because they were in the best position to determine what is infringing and what is not. “There's no central depository of copyrights,” said Google's lawyer during the appellate hearing.
What Garcia's lawyers are attempting to do is to show that YouTube has been willing in the past to be quick with their takedown trigger fingers and are not responding similarly in this case. The difference, of course, is that Garcia is claiming ownership on something in which the law is, if I want to be extremely generous to Garcia’s lawyers, ambiguous. To be less generous, the caselaw I referenced earlier determined that Garcia does not have any takedown rights over her performance, which is why YouTube is refusing to take the film down. And, as a California judge did once already, another judge has refused to issue an injunction to remove the film. In fact, that judge mentioned what I've been saying since Garcia first started her arm-waiving:
But on Thursday, the judge denied her request for a temporary restraining order, citing the fact that the alleged infringement commenced almost three months ago.
Where was Garcia and her team of kinda-lawyers when this film was first released? It was out for months before the controversy began and the fatwas were issued. If this was an infringement on her performance, why was it only after the media picked this story up that such infringement was alleged by Garcia?
The only logical answer is that until the negative press began, Garcia didn't care. Which means she's using DMCA notices, not because of any legitimate copyright claim, but rather in an attempt to stifle free speech.