Prof. Doug Lichtman, UCLA School of Law
December 15, 2014

Jane Ginsburg wrote earlier this month about Garcia v. Google, a controversial Ninth Circuit decision that is now pending for en banc review.  Her piece is excellent; but I have to admit that, even after reading Jane’s article, I remain baffled by the case.

The facts I understand.  A pair of writer/producers cast a relatively unknown actress in a minor role in their movie.  The actress played a character who appeared in only four pages of the script, and she was paid a paltry $500 for just under four days of work.  The movie was never actually finished or released.  Instead, at least one of the actress’s scenes ended up being included in a different film, specifically an anti-Islamic film.  In that film, the actress’s performance was altered such that it was made to seem as if she asked, “Is your Mohammed a child molester?”  Importantly, the actress had not in fact spoken those words.

The anti-Islamic film was uploaded to Google’s YouTube website, and controversy ensued.  There were international protests.  An Egyptian cleric issued a fatwa calling for everyone involved in the film to be killed.  The actress indeed received death threats.  And so the actress contacted Google and asked that Google take the video down.  Google refused.  The actress invoked a purported copyright interest in her performance and tried to use the DMCA to pressure Google to take the video down.  Google refused.  The actress therefore sued Google to force removal of the video.

So far, I get it.

I also understand why copyright lawyers care so much about this case.  One of the central legal issues in this case is whether this actress has copyright rights sufficient to force Google’s hand.  Is her performance sufficiently original to qualify for copyright protection?  Is the movie a joint work and, if so, is she an author?  What implied licenses were transferred by virtue of her decision to accept payment and instructions from the writer/producers?  The list goes on, and again, I understand: Whatever rule the Ninth Circuit articulates might also end up applying to move conventional situations where actors and actresses take part in the creation of audiovisual materials.  Fine.

But what I don’t understand is why Google refused to take this video down in the first place.

Yes, I know, some people are enamored with Voltaire and his famously gallant “I disapprove of what you say, but will defend to the death your right to say it.”  And I will admit that I am probably more grumpy than most when it comes to First Amendment values like these.  I value free speech, sure, but I would not reject out-of-hand a legal system where dangerous speech was controlled a little more than Voltaire might like.  (Yes, Sarah Palin, I’m looking at you.)

But even if Google is committed to Voltaire whole-hog, this is not a case where the Voltaire intuitions apply.  After all, the issue in this case is not free speech, but forced speech.  The actress at the center of this dispute neither wanted to say something horrible and disrespectful about Mohammed, nor in fact did say anything horrible and disrespectful about Mohammed.  The offensive words were quite literally put in her mouth.

Given that, why did Google resist, rather than simply invoking its terms of service and, in its discretion, taking this video down?  Google could have accompanied its action with a press release trumpeting the company’s commitment to free speech, while at the same time making clear that speech of this sort is emphatically not free.

So, I’m puzzled, not about the merits of the case, but about why this one ended up in litigation in the first place.