‘Garcia v. Google’ Ruling Could Redefine Copyright Ownership, Say Advocates, Academics

Advocates of the First Amendment felt that the court decided that copyright considerations outweighed those for free speech. The ruling grants revenge porn victims stronger copyright protections, said Derek Bambauer, a University of Arizona law professor specializing in Internet law and intellectual property. The ruling was “unjustified and unjustifiable,” said James Grimmelmann, a University of Maryland law professor specializing in IP and technology. While the “end result is understandable,” given the suffering endured by Garcia, the damage to the First Amendment is “extensive,” said Grimmelmann.

The ruling is “potentially groundbreaking,” said Bambauer. The decision is “huge for revenge porn victims,” even if they didn’t take the photo or film themselves, he said. They can now issue Digital Millennium Copyright Act (DMCA) “takedown notices to websites, and sue infringers,” he said. Revenge porn victims have been given a “potent new tool,” he said. “Actors and actresses may well be able to claim copyright in their film performances.” Movie studios should be able to make adjustments to their contracts, but “amateur filmmakers will likely have to be more careful in their paperwork,” he said.

This is an example of “good facts” making “bad law,” said Marvin Ammori, New America Foundation fellow, in a blog post (http://bit.ly/1kcSqhq) on his own behalf. Ammori has done legal work for Google, but not on this case, he said. The ruling was “disastrous for free speech” because if people shown in only a few seconds of film “have a copyright interest to take down a video,” the door will be open for “lots of people” to sue to remove film or video online, he said. Lawsuits won’t even be necessary -- “they'll just send DMCA takedown notices to take down videos,” he said. Governments might have the chance to work with “potential copyright-holders” to remove videos “they couldn’t otherwise have taken down,” said Ammori. “Legitimate” film directors, producers and actors would “face increased uncertainty” about who owns the copyright to particular movies, he said. The ruling’s premise would allow the removal of “really important speech from a historical perspective,” Ammori said. “This movie in particular is a historical record of the protests it spurred and of the free speech debate it catalyzed.”

The case is an example of “copyright maximalism trumping free speech,” said Corynne McSherry, Electronic Frontier Foundation intellectual property director, in a blog post (http://bit.ly/1jDEZnX). Garcia’s copyright claim was “tenuous (at best),” she said. The decision “blows past the First Amendment concerns with the time-worn observation that ’the First Amendment does not protect copyright infringement,'” which doesn’t make copyright “cases immune from the same balancing test that applies to any injunction,” she said. The Supreme Court has ruled “repeatedly” that injunctions on free speech are “particularly disfavored,” she said. Garcia’s attorney, Cris Armenta, didn’t comment.

There are “two versions” to interpreting the ruling, said Bambauer. The first is that the court was “very sympathetic to Garcia,” he said. “She has been suffering terrible personal consequences as a result of starring in it [the film], and so they bent copyright doctrine a bit to offer her legal relief,” he said. The second interpretation broadens the definition of “what it means to be an author” under copyright law, which expands the “scope of participants who can claim a copyrighted interest in a work,” he said. If that’s the case, said Baumbauer, “then the Ninth Circuit has just re-shaped copyright in a way that will have profound effects for Hollywood.”