Wednesday, March 05, 2014


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 charges.  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.  But 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 seizure?   Oh, and Tighe’s blog, with all of its criticisms of NXIVM, disappeared last October when his computers got seized.  Something doesn’t smell right around here.

            Moving on.  Last week the 9th Circuit 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.”    I’ve only got room to scratch the surface, but here goes.

            The facts 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.”  Her 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.

            The film was all over YouTube and Garcia demanded it be taken down, claiming a copyright interest in the film.  YouTube refused, Garcia sued, the lower court ruled that she had no copyright interest, and then the 9th Circuit reversed and ordered Google to remove all versions from YouTube.  The court also placed a gag-order on all involved not to talk about the ruling for a week.

            I’m not terribly shocked by the finding that Garcia had some copyright interest in the film.  The EFF and Techdirt and the dissenting opinion went nuts, saying that actors’ performances aren’t copyrightable.  Nonsense!  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 friends!)

            Then they 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 her performance).  Really? Someone who acted for a couple of days for a barely-professional movie production is anything but an independent contractor?  Get out.

            So the 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.

            The 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.   Again, nonsense.  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 industry. 

            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.  Ordering 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 should bend.  Plus the film has been online for several years already—taking it down from one platform now makes no sense.

            And then 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 soon.  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 MPAA lawyers.  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.


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