This article was originally published in the 3.6.14 issue of Metroland
Last week Saratoga
Springs blogger John Tighe (“Saratoga in Decline”) was arrested on child porn
His computers had been seized
by the New York State Police 5 months ago, as part of an investigation about
whether Tighe had hacked into the IT systems of NXIVM, the shady cult-like
“self-improvement” organization based in Latham.
NXIVM is notoriously litigious, swimming in
dough, and has had questionable cozy relationships with law enforcement in the past.
On his blog, Tighe had been doggedly critical
of NXIVM and its lawyers.
Look, I’m no
fan of child porn enthusiasts, and to be sure Tighe was no angel.
He was a classic example of the
unhinged blogger, and a lot of what he did and said on his blog was
irresponsible and over the top.
isn’t there something profoundly disturbing about cops seizing your
computers based on some suspicion of a cyber break-in, and then rifling through
your computers for months until they find something illegal in there?
Something totally unrelated to the initial
Oh, and Tighe’s blog, with all
of its criticisms of NXIVM, disappeared last October when his computers got
Something doesn’t smell right around
Last week the 9th
Court of Appeals, the federal appeals court that covers the entire west coast,
issued a take-down order against Google that blew a lot of minds.
The Electronic Frontier Foundation jumped on
it, saying it was a classic example of “bad facts making bad law”; Tech Dirt
went particularly ballistic, calling the decision “horrific.”
only got room to scratch the surface, but here goes.
are as weird as can be.
An actress named
Cindy Lee Garcia was paid $500 to act in what she was told was to be an action
film entitled “Desert Warrior.”
scenes wound up in “Innocence of Muslims”, the anti-Islamist film that may or
may not have caused the embassy attack in Benghazi.
At one point an over-dub had her saying “Is
your Mohammed a child molester?” Garcia became the focus of a fatwa, and she's received numerous death threats.
was all over YouTube and Garcia demanded it be taken down, claiming a copyright
interest in the film.
Garcia sued, the lower court ruled that she had no copyright interest, and then
Circuit reversed and ordered Google to remove all versions
The court also placed a
gag-order on all involved not to talk about the ruling for a week.
terribly shocked by the finding that Garcia had some copyright interest in the
The EFF and Techdirt and the
dissenting opinion went nuts, saying that actors’ performances aren’t
It takes very little creativity to garner
copyright protection, and to say that a dramatic performance doesn’t get you
there is absurd. (
You’re welcome, actor
got upset because the court said Garcia wasn’t an employee of the film-maker
(if she’d been an employee, the film-maker would have owned the copyright to
Really? Someone who
acted for a couple of days for a barely-professional movie production is
but an independent contractor?
court ruled that Garcia had a legal interest in her performance. In the normal course
of things the law would presume that she’d granted the film-makers an “implied
license” to use her performance in their film.
I mean, why else was she acting in front of the cameras, right?
But Garcia’s implied license was for a
relatively benign film called “Desert Warriors”, not for an inflammatory piece
of trash condemning one of the world’s major religions.
So “Innocence of Muslims” infringed Garcia’s
copyright in her performance.
decision’s critics say that if this ruling stands, any actor in any film can
sue if they don’t like how the movie comes out.
There’s a huge and fairly identifiable
difference between esthetic disputes and utter deception that puts an actor’s
life in danger.
So here’s a
rare instance where I disagree with folks who are usually my heroes.
I think this part of the court’s decision was
sound; I also think that the facts are so extremely odd that there will be
little or no negative ramifications from this decision on the film
And I think
that Techdirt’s and the EFF’s arguments to the contrary undermine their better
arguments against the remedy the court fashioned: the take-down of the film and
the gag order.
This is where the court
went over the cliff, big time.
a film banished because of a minor copyright violation is wrong.
Garcia’s role in the film was small; she had
something to protect, but it wasn’t very much.
The court’s order was tantamount to censoring the film, and where you’ve
got tension between free speech and copyright law, it’s copyright law that
Plus the film has been
online for several years already—taking it down from one platform now makes no
there’s the gag order.
Huh? What country
are we in?
This case will undoubtedly
get reargued before the full panel of 9th
Circuit judges, and
They’ll be a ton of amicus parties
and it’s gonna be fun to see the EFF lawyers arguing on the same side as the
And ultimately, cooler
heads will prevail.
Paul Rapp is a local
entertainment attorney who just learned, to his extreme displeasure, that a
failed turbocharger can totally destroy a car motor.